2016 NOTES ON THE REVISED RULES ON CRIMINAL
PROCEDURE
PART I
CHAPTER I INTRODUCTION
This “Notes on the Revised Rules on Criminal Procedure” is a compilation
of relevant and important rulings of the Supreme Court and commentaries of
various experts. Said jurisprudence and annotations come mainly from the
following sources:
1. Ciminal Procedure, A Lawyer’s Companion, 2006 ed. Suarez and dela
Banda;
2. Notes on Criminal Procedure, Dean Hildegardo F. Inigo;
3. Rules on Criminal Procedure 2007 ed., Herrera;
4. Handbook on Criminal Procedure 2008 ed., Tan
5. Criminal Procedure (The Bar Lecture Series) 2011 ed. Riano and
6. Criminal Procedure (Benchbook), J. Diosdado Peralta
7. Criminal Procedure (A Comprehensive Approach for the Bench and
the Bar), Ferdinand Tan, 2015 Ed.
This is a project intended to benefit the Center for Legal Aid Work of the
University of San Carlos School of Law and students enrolled in Criminal
Procedure handled by Associate Justice Gabriel T. Ingles of the Court of
Appeals of the Philippines.
THE CHALLENGE OF A CAROLINIAN LEGAL
PROFESSIONAL
Law, a noble professionLaw is a noble profession. And I say that without any fear of
contradiction because the public good it inherently serves is to
assist in the administration of justice, thru the rule of law.
Daniel Webster, an excellent trial lawyer said: “Justice is the
greatest concern of man on earth.”
Paschal Njoku also reminds us that, “We need to understand that,
as advocates of the law, we are the defenders of the Constitution,
the guardians of liberty, the protectors of rights and the advocates
of just causes.”
This is our role; this is our commitment; this is our destiny.
In fine, there is inherent honor in the legal profession. And we are
privileged to share in that honor.
A Most Important Quality of a Good LawyerHowever, to deserve and continue to be deserving of that privilege,
it is not enough that we have been admitted to the Bar. More
importantly, we must, at all times, have respect for the truth. Of all
legal virtues and qualities of a good lawyer, respect for the truth is
the highest. For without respect for truth there can be no justice,
making the practice of law become meaningless.
This is the reason why in our codes of ethics and professional
conduct the main premise and predicate is reverence for the truth.
In fact in our lawyer’s oath, it comes immediately after our
allegiance to the Constitution and the Rule of Law.
Thus, in the case of Young v. Batuegas, the Court held:
“A lawyer must be a disciple of truth. He swore upon his
admission to the Bar that he will ‘do no falsehood nor consent to
the doing of any in court’ and he shall conduct himself as a lawyer
according to the best of his knowledge and discretion with all good
fidelity as well to the courts as to his clients. He should bear in
mind that as an officer of the court his high vocation is to correctly
inform the court upon the law and the facts of the case and to aid it
in doing justice and arriving at a correct conclusion.”
Basic Characteristics of the Practice of Law
What then are the basic characteristics of the practice of law,
defined in Cayetano v. Monsod as not being limited to the conduct
of cases or litigation in court but embracing any activity that
involves knowledge and/or application of the law?
1. It is not a money-making venture (Canlas v. CA 164 SCRA
160). Law advocacy is not capital that yields profits. The returns it
births are simple rewards for a job well done or service
rendered. (Metrobank v. CA 181 SCRA 377). This is not to say
that financial concerns are not important to a lawyer. However,
while we do not ignore such concern, priority must always be
given to the weightier responsibilities and burdens that attach to
our role as lawyers; and
2. It is reserved only to those who are academically trained in law
and possessed of good moral character not only at the time of his
admission to the Bar but even more so, thereafter to remain in the
practice of law. (People v. Tuanda 181 SCRA 692, Melendrez v.
Decena 176 SCRA 662)
The bad reputation of the legal professionBut while law is truly a noble profession, it is regrettable how
society has come to perceive lawyers negatively. Let me cite some
of these negative views.
In the Opinion page of the July 24, 2015 issue of the Inquirer we
can find a comment about lawyers entitled “Law practice: reduced
to a ‘game of one-upmanship’ ”. The writer writes:
“I have studied legal ethics and it pains me to know that in the real
world of law practice, principles don’t count much. It is no
different from any dog-eat-dog business. It’s a game of oneupmanship. Esteem is often measured by the kind of client a
lawyer represents: The bigger the crook (with millions stashed
away to buy the “smartest” defense lawyer), the more “respect” he
gets- and the bigger his bragging rights if he gets him off the hook!
That really sucks!
In the same page of the July 1, 2015 issue of the same paper
another comment can be found titled “Best that money can buy”. It
states in part:
“Already, there is a joke going around about lawyers being no
more virtuous than prostitutes – they will do (or say) anything for a
client if the price is right!
Addressing the IBP, it asks these questions: “Has the IBP failed
miserably to ‘police its ranks? Has it really gone that bad? Touted
as an organization to promote the nobility of the law profession,
the IBP may have instead become a breeding ground of the world’s
oldest profession! In most cases involving grand larceny or
plunder, we are frequently treated to the droll spectacle of
‘abogados de campanilla’ making fools of themselves by raising
defenses that insult even a non-lawyer’s intelligence! How do they
ever find the gall to say the most stupid things with a straight face?
Truly the sheer magnitude of their client’s thievery, they are “the
best that money can buy.”!
Unfortunately, nothing is new.
The SWS 1985 and 1993 National Public Opinion Surveys on the
Legal Profession show the following statistics:
The respondents in both surveys were asked to estimate the
number of lawyers who could be bought or bribed. In 1985, 57%
said many or most of them could be bought while, 39% said that
none or only a few were corrupt.
In 1993 or after eight years, there was a total negative score of
58% or practically the same as the 57% of 1985.
The respondents were also asked to estimate the number of
lawyers who were trustworthy. In 1985 the majority or 55% were
inclined to believe that none or only a few lawyers were
trustworthy, while in 1993 it likewise showed a similar result, that
is, 61% said none or only a few could be trusted.
The disconnect between public perception and inherent nobility of
the law profession; its causeBut why is there a gap between society’s perception and the
inherent nobility of the law profession?
According to Justice Tijam in an article entitled “The Ethical
Lawyer” there are two interrelated causes behind our bad
reputation or why lawyers succumb to unethical practice“First is the treatment of the legal profession as a business more
than a profession – or when money becomes the compelling
reason. And second, is the lawyer’s blind loyalty to his client’s
cause, wherein the tendency to manipulate the legal system without
regard to right or wrong becomes second nature”.
The first is illustrated by the anecdote where a son asked his father
saying “ Dad you must not be a good lawyer, why did it take you
ten years to finish your case?” And the father answered, “Son don’t
belittle your father’s ability. I intentionally finished the case in ten
years because it enabled me to pay for your education.
According to Justice Tijam, “ironically the purpose of the anecdote
is to breed inspiration to the son. However, underlying in that same
story is the toll that the financial aspect of the profession is taking
in the legal system.”
“xxx he further asserts, xxx Attorneys nowadays face an intense
pressure to serve clients’ short-term interests, regardless of what it
takes, at the expense of other values. As another one of the lawyer
jokes goes, ‘A good lawyer knows the law. A great lawyer knows
the judge’. Lawyers blindly adhere to their client’s cause as they
have to keep winning cases to achieve or maintain a good
‘reputation’ and in turn attract more clients.”
“The environment in which lawyers have practiced their profession
have become too commercial to a fault. It has been ruled by a
culture of pride over principle, money over cause.”
This is,.I think, the reason why only a few lawyers outside of the
Public Attorney’s Office, involve themselves with legal aid for the
poor. In a 1994-1995 SWS Survey of Lawyers it inquired how
often lawyers handle pro-bono cases and the most frequent
response is rarely or never.
In sum, it is the lack of integrity, defined as the uncompromising
adherence to ethical principles that brings dishonor and disrespect
and causes damage to the nobility of the legal profession.
The Importance of Legal Ethics
How then, do we, as members of the Bar, old and new and
Carolinian students of law, bring back the honor and nobility
intrinsic to our profession? What can we do to change the current
situation we are in – where perception of corruption is as
malevolent as the fact of corruption itself.
If the cause is lack of integrity then the solution is to adhere to
integrity at all times. In other words, we should not stop at merely
learning the ethical principles underlying our profession during our
college of law and bar examination days or paying them lip
service, but more importantly as lawyers, we should be committed
to them and practice them. xxx
As our beloved Pope Francis has exhorted us during his visit to the
Philippines last year relative to our Christian values:
Be wise! First know. Then put to heart what you know. Finally,
translate what you have in your heart into action.
And note what is needed is our commitment to, not merely
involvement in integrity in the practice of law because there is a
whale of difference between the two as illustrated thus:
When you have a breakfast of buwad and itlog, the hen that lays
the egg is merely involved in giving you food, while the fish is
committed.
Thus, the challenge we lawyers and students of law face today is
to be committed to and put to action integrity in everything we do
as lawyers or while studying law. And this is more compelling for
us formed and trained in an educational institution run by the
Society of the Divine Word because our common mission is to
“Witness to the Word.”
We declared that a Carolinian law graduate must be a witness to
the word.
To be so he/she must develop and practice the12 ATTRIBUTES
OF A CAROLINIAN LAW GRADUATE; namely:
Scientia: A COMPETENT PROFESSIONAL
Critical thinker
Lifelong learner
Skilled researcher
Sound decision- maker
Innovative problem-solver
Effective and articulate communicator
Virtus: A VIRTUOUS EXEMPLAR
Incorruptible servant leader
Ethical and values-driven practitioner
Devotio: A DEDICATED ADVOCATE
Committed peacemaker
Culture- sensitive patriot
Socially- engaged citizen
Passionate worker for the marginalized
In fine, as Carolinian lawyers, legal professionals or law students,
we cannot be witnesses to the Word unless we integrate the Word
in our practice of law. The only way is to live by and be faithful to
the ethics of our profession at all times.
Equally important is to be constantly reminded, according to an
American Supreme Court Associate Justice, that: “neither a judge
nor a lawyer can properly discharge the great responsibilities that
are his unless he displays, in a large measure, humility – that is,
freedom from arrogance.”
So to end, if we want change in our reputation as lawyers, the
urgent call and challenge for all of us, especially we, the legal
professionals and students of law of St. Arnold Jansen, is to
advance the cause of integrity in our profession thus, becoming
true witnesses to the Word. xxx
CHAPTER II. THE SUBJECT- CRIMINAL PROCEDURE
Major divisions in law:
a) Substantive law – a part of law which creates, defines or regulates
rights concerning life, liberty or property, or the powers of agencies or
instrumentalities for the administration of public affairs. (Primicias vs.
Ocampo 49 OG 2230)
b) Procedural/Adjective/Remedial Law – prescribes the method of
enforcing rights or obtaining redress for their violation. (Bustos v.
Lucero 81 Phil. 640,650)
2) Sources of remedial law:
a) The Constitution
b) Laws creating the judiciary
c) Laws defining and allocating jurisdiction to different courts
d) Rules promulgated by the SC
e) circulars, administrative orders, internal rules and SC decisions
3) Scope of Remedial Law:
a) Constitution
b) Civil Procedure (Rules 1 to 56 and other related laws);
c) Provisional Remedies (Rules 57 to 61);
d) Special Civil Actions (Rules 62 to 71)
e) Special Proceedings (Rules 72 to 109)
f) Criminal Procedure (Rules 110 to 127)
g) Evidence (Rules 128 to 133)
h) Katarungang Pambarangay Law (RA 7160) and Implementing rules
i) Revised Rules on Summary Procedure.
4) Criminal Procedure defined
It is a method prescribed by law for the apprehension and prosecution of
persons accused of any criminal offense, and for their punishment, in
case of conviction. (Clark”s Crim. Procedure)
Criminal proceedings – the phrase “in all criminal proceedings” where
the accused has the right to be heard by himself and counsel (Art. III,
Sec. 1 (17) 1935 Constitution), means proceedings before the trial court
from arraignment to rendition of judgment. This doctrine has become
part of the law of the land under the 1973 Constitution (Art. IV. Sec. 20).
(People vs. Dalanta, 11618-CR, August 12, 1974)
5) Sources of Criminal Procedure
a) Rules 110 to 127 of the Rules of Court which took effect on Jan. 1,
1974. The rules were revised in 1985 and in turn amended on October 1,
1988. On October 3, 2000, the Supreme Court in an en banc resolution
approved the revision which took effect on Dec. 1, 2000 (AM No. 00-503-SC)
b) The 1987 Constitution particularly the Bill of Rights (Art. III)
c) Laws passed by Congress like BP 129 as amended by RA 7691; RA
8249, creating the Sandiganbayan; RA 8349, The Speedy Trial Act of
1998
d) PDs like PD 911
e) Executive Orders
f) judicial decisions applying and interpreting our laws which form part
of our legal system.
6) Distinction between Criminal Law and Criminal Procedure
Criminal law is substantive because it defines crimes, treats of their
nature and provides for their punishment.
Criminal Procedure is remedial; it provides for the method by which a
person is accused of a crime, arrested, tried and punished.
The former declares what acts are punishable while the latter provides the
method of how the act is punished.
7.)Public and Private Crimes Distinguished
The vital and essential distinction is the control which in private crimes
the injured person has over the criminal liability and the responsibility of
the offending person. (US vs. Hernandez, 14 Phil. 640)
8.) Systems of Criminal Procedure
a) Inquisitorial when the prosecution of crimes is fully in the hands of the
prosecuting officer and the court; procedure is characterized by secrecy;
presence of accused before the magistrate is not a requirement; judgment
does not become final until it has been ratified and confirmed by the
court of last resort (US vs Samio 3 Phil 691).
In other words, the detection and prosecution of offenders are not left to
the initiative of private parties but to the officials and agents of the law.
Resort is made to secret inquiry to discover the culprit and violence and
torture were often employed to extract a confession. The Judge was not
limited to the evidence brought before him but could proceed with his
own inquiry which was not confrontative.
b) Accusatorial when it requires that all crimes, except private crimes,
which must be commenced by the complaint of the offended party, be
prosecuted by the public prosecutor, the accused has the right to be
present at any stage of the proceedings and to be heard personally or by
counsel; trial is conducted publicly and the right of the accused against
self-incrimination is guaranteed; accused enjoys presumption of
innocence which lasts until his guilt is proved beyond reasonable doubt;
right to appeal is a characteristic feature, though the judgment of the trial
court does not require the imprimatur of the court of last resort before it
may attain finality.
c) Mixed system, which is a commixture of both systems. This is our
system. That the preliminary examination be conducted by the judge
before he issues a warrant of arrest; that the prosecution is under the
control and supervision of the public prosecutor are features of the
inquisitorial system. However, the rights of the accused to be presumed
innocent; to be present; against self-incrimination, etc; that a judgment of
the trial court can be final without any imprimatur from the Supreme
Court are features of the accusatorial system.
This is a combination of the inquisitorial and the accusatorial systems.
Thus, the examination of defendants and other persons before the filing
of the complaint or information may be inquisitorial (People vs. Padilla,
48 Phil. 718). This is particularly true in the preliminary examination for
the purpose of issuing a warrant of arrest. Under the 1985 Rules on
Criminal Procedure, a criminal action may be instituted by complaint of
the offended party or by information filed by the Fiscal and once the
criminal action is filed in court, the accused has the right to confront and
cross-examine his accuser. It has, however, been held that :
“As a general rule, a court proceeding in our judicial set-up is
accusatorial or adversarial and not inquisitorial in nature. It contemplates
two contending parties before the court which hears them impartially and
renders judgment only after trial.” (Questo vs. Catolico, 31SCRA 52
[1970]).
9.) Construction of the Rules
As provided for in Sec. 6 Rule 1 “These Rules shall be liberally
construed in order to promote their objective of securing a just, speedy,
and inexpensive disposition of every action and proceeding.”
PNB vs. Deang marketing Corporation,GR No. 177931, December 8,
2008
Rules of procedure must be faithfully followed except only when for
persuasive reasons, they may be relaxed to relieve a litigant of an
injustice not commensurate with his failure to comply with the prescribed
procedure.
Facts:
Petitioner filed a Motion for Extension to file an Answer via a private
courier 9 days beyond the reglementary period and received by the trial
court ten days late. The answer was thus deemed filed out of time and
thus not admitted. Petitioner tried to justify its delay by cunningly
providing fictitious dates for its filing.
Doctrines
It is a basic rule of remedial law that a motion for extension of time to
file a pleading must be filed before the expiration of the period sought to
be extended. The court's discretion to grant a motion for extension is
conditioned upon such motion's timeliness, thus passing of which renders
the court powerless to entrtain or grant it. Since the motion for extension
was filed after the lapse of the prescribed period, there was no more
period to extend.
Rules of procedure, especially those prescribing the time within which
certain acts must be done, have often been held as absolutely
indispensable to the prevention of needless delays and to the orderly and
speedy discharge of business. The bare invocation of "the interest of
substantial justice" is not a magic wand that will automatically compel
this court to suspend procedural rules.
Litigations should, as much as possible, be decided on their merits and
not on technicalities. This does not mean, however, that procedural rules
are to be ignored or disdained at will to suit the convenience of a party.
Procedural law has its own rationale in the orderly administration of
justice, namely, to ensure the effective enforcement of substantive rights
by providing for a system that obviates arbitrariness, caprice, despotism,
or whimsicality in the settlement of disputes. Hence, it is a mistake to
suppose that substantive law and procedural law are contradictory to each
other, or as often suggested, that enforcement of procedural rules should
never be permitted if it would result in prejudice to the substantive rights
of the litigants.
Rules of procedure must be faithfully followed except only when for
persuasive reasons they may be relaxed to relieve a litigant of an injustice
not commensurate with his failure to comply with the prescribed
procedure. Concomitant to a liberal application of the rules of proceduree
should be an effort on the part of the party invoking liberality to explain
his failure to abide by the rules.
10.) Retroactive Application
Although the crime was committed before the effectivity of the Revised
Rules of Criminal Procedure, the said rule should be applied retroactively
as it is favourable to the appellant. (People vs. Antonio Reyes, GR No.
153119, April 13, 2004, citing People vs. Escote, GR No. 140756, April
4, 2003)
11) Constitutional Provisions Relative to Criminal Procedure
a) Due Process of Law and Equal Protection of Laws (Sec. 1 Art III)
b) Right Against Unreasonable Searches and Seizures (Sec. 2 Art. III)
c) Miranda Rights (Sec. 12 Art. III)
d) Right To Bail (Sec. 13, Art. III)
e) Right To Be Presumed Innocent and to Due Process of Law, etc. (Sec.
14, Art. III)
f) Right to Speedy Trial (Sec. 16)
g) Right Against Self-Incrimination (Sec. 17)
h) Right Against Detention By Reason of Political Beliefs and
Aspirations (Sec. 18(1)
i.Right Against Involuntary Servitude (Sec. 18 [2])
j) Right Against Excessive Fine and Cruel Punishment (Sec. 19)
k) Right Against Imprisonment for Non-Payment of Debt (Sec. 20)
l) Right Against Double Jeopardy (Sec. 21)
m) Right Against Ex-Post Facto Law or Bill of Attainder (Sec. 22)
12. THE PHILIPPINE CRIMINAL JUSTICE SYSTEM
ConceptThe Criminal Justice System (CJS), essentially, is the system or process
in the community by which crimes are investigated, and the persons
suspected thereof are taken into custody, prosecuted in court, and
punished if found guilty, provision being made for their correction and
rehabilitation.
The CJS is only one of various systems operating in the community, such
as the political system, the educational system, the economic system, etc.
Five Components of the Criminal Justice System known as the five
pillars of the CJS.
A. Law Enforcement Process
The law enforcers are the officers and men of the PNP, NBI and other
agencies. When these law enforcers learn of crimes, or discover them,
their duty is to:
1. INVESTIGATE THE CRIME
They may conduct surveillance, interview persons with knowledge
of facts directly or indirectly connected with the offense, take
photographs (surreptitiously or otherwise), arrange for entrapment
when feasible, search premises and persons subject to
constitutional and statutory safeguards, examine public and other
available records pertaining to the persons involved and get copies
of pertinent entries, etc.
The police officers, in other words, collect evidence for use in the
prosecution of the suspects in court.
Evidence is the means of establishing a fact or proving the truth or
falsity of an assertion or allegation.
This may consist of:
a) The TESTIMONY of witnesses – including “invited” suspects
– which are invariably taken down in question-and-answer
form;
b) WRITINGS; like texted threats sent before the commission of
homicide, etc., and presented to prove the content thereof.
c) OBJECTS: guns, knives, other weapons used in the
commission of the crime; the clothing of the victim; etc.
2. ARREST suspects:
a) By virtue of a warrant of arrest issued by a judge on the basis of
the evidence submitted to them; or
b) Under circumstances justifying warrantless arrest and effected
before a case is filed in court.
3. REFER the case and the suspects to the office of the public
prosecutor or other authorized agencies for determination of
whether there is sufficient basis (probable cause) for the filing of a
criminal case in court, or directly to the MTCs for trial and
judgment.
B. Prosecution Process
The prosecution service, made up of the Provincial and City Prosecutors,
State Prosecutors, etc. They:
1. EVALUATE the police findings referred to them, or other complaints
filed directly with them by individual persons (e.g. private citizens
who are victims, or have knowledge of crimes; government officers in
charge of enforcement of the law violated);
2. FILE CORRESPONDING INFORMATIONS OR CRIMINAL
COMPLAINTS in the proper courts on the basis of their evaluation of
the proofs at hand; and
3. PROSECUTE the alleged offenders in court, in the name of the
People of the Philippines.
Attorneys in private practice should be deemed a part of this CJS
component (Prosecution). They represent the parties (complainant or
respondent) in proceedings before the Public Prosecutors. So also public
defenders – such as members of the PAO and other legal aid lawyersshould be considered part of this Prosecution component.
C. The Judicial Process
The final determination of the innocence or guilt of persons accused
of crimes by the Prosecution Component, is done by the Judicial
Component (the courts).
In the context of the Criminal Justice System, after a suspect has gone
through the Prosecution Component, (described in the preceding
discussion), he is sent to the proper Trial Court which then passes
upon his innocence or guilt. If the trial court finds that his guilt has
not been proven beyond reasonable doubt, or he is innocent, he is
acquitted, and there is an end to the matter. The accused returns to
society, a free man. If the Court, however, finds that his guilt has been
proven beyond reasonable doubt, it sentences him to the
corresponding penalty. If the judgment becomes final the suspect is
passed on to the next component, the PENAL or CORRECTIONAL
component.
D. Penal or Correctional Process
Punishment – the isolation of the convicts by imprisonment for the
periods laid down by the courts, or in extreme cases, their execution
by the methods prescribed by law – and correction and rehabilitation,
are functions undertaken by the institutions set up by law, e.g., the
Bureau of Jail Management, the Parole and Probation Administration.
E. The Community
After the convicts have passed through the Correction Component –
either unconditionally (as by full service of the imprisonment
imposed), or by parole or pardon – they go back to the
COMMUNITY and either lead normal lives as law abiding citizens in
their barangays, or, regrettably commit other crimes and thus go back
through the same processes and stages of the CJS.
The community at large – through the appropriate legislative agencies,
public and private educational institutions, parents and guardians,
churches, religious organizations, civic associations, etc. – develops
and exacts conformity with acceptable moral and ethical values,
creates the environment for the development of civic-spirited citizens,
and fosters respect for and observance of the Rule of Law.
In particular, members of the community having knowledge of facts
relevant to the investigation or prosecution of crimes, are expected to
cooperate with law enforcers and investigators, by reporting crimes
and giving evidence against the offenders. Attorneys in private
practice, or pertaining to associations committed to giving legal aid to
indigent or otherwise deserving individuals, should be reckoned as
part of the fifth component of the CJS, the community. They
participate directly or indirectly in the CJS; they give advice to, or
represent, persons involved in criminal actions before the proper
authorities.
The Community Component should also include government institutions
that play a role of the CJS, such as the Bureau of Posts – which delivers
court notices; the Commission of Immigration & Deportation – which may
prevent the departure of suspects from the country; the Bureau of
Telecommunications – which transmits communications by telephone,
telegram, or radio; the government hospitals and medical centers – which
furnish experts who may enlighten the courts on issues involving medical or
other sciences, etc. Private institutions and civic organizations should also be
deemed part of, since they may also have roles to play in the CJS.
CHAPTER III. BRIEF OUTLINE ON THE STAGES IN THE LIFE OF A CRIMINAL
ACTION
TWO MAIN STAGES
A. The NON-JUDICIAL Stage OR PROCEEDINGS OR REMEDIES BEFORE
THE FILING OF THE COMPLAINT OR INFORMATION IN COURT
1. warrantless arrest (Section 5, R 113);
2. Search and seizure (R 126);
3. custodial investigation (RA 7438);
4. Inquest (R 112);
5. Preliminary Investigation (R 112);
6. Application for and posting of bail (R 114);
7. Application of an accused before the DOJ to become a state
witness (RA 6981)
8. Barangay conciliation and mediation and issuance of Barangay
Protection Order (RA 9262).
B. The JUDICIAL STAGE
1. Filing of complaint or information in court;
2. Arraignment and Plea;
3. Pre-Trial Conference;
4. Trial;
5. Judgment and Execution
THE JUDICIAL STAGE
FILING OF COMPLAINT OR INFORMATION IN COURT
RULE 110
Determination of Probable Cause
Issuance of Warrant of Arrest or
Commitment Order
Motion to
Posting /
Motion for
Motion to Conduct
Suspend
Application
Bill
PI / Reinvestigation
Proceeding
for Bail
Motion to
Quash
Information
of
Prosecution of
Civil Action (R111);
Provisional Remedies
(R126)
Particulars
ARRAIGNMENT and PLEA
(Rule 116)
PRE-TRIAL CONFERENCE (Rule 118)
Mediation and Conciliation
TRIAL PROPER
Presentation of Prosecution's
Presentation of Evidence
Evidence (R119)
by Accused (R119)
Demurrer to Evidence
If granted – Acquittal
If denied
Double jeopardy
with leave of court -
Certiorari under R65
Evidence for Accused
Without leave -
JUDGMENT (R120)
MR/Judgment
New Trial
Reconsideration
Reopening
Appeal
Probation
(R121)
(R121)
(Sec. 24 R119)
(R 122; 124; 125, 42
(PD 908 as
and 45)
Amended)
EXECUTION OF JUDGMENT
Criminal Aspect
Civil Aspect
1.Filing of the complaint or Information in courtThe investigating prosecutor shall file the corresponding information
before the court despite the pendency of the Petition for Review
before the Secretary of Justice, and the judge will issue a
corresponding warrant of arrest (R 113) unless it falls under
Summary Procedure, in which case the accused may either avail the
remedy of posting of bail (R114), or a motion to suspend
proceedings due to the pendency of the petition for review before
the DOJ, or a motion to quash the complaint or information (Section
3, R 117), or a motion for bill of particulars (Section 9, R 116);
2.Arraignment –
The judge shall set the case for arraignment within 30 days from the
date the court acquires jurisdiction over the person of the accused,
unless a shorter period is required by law (Section 1, R 116). If a
motion to suspend arraignment is filed, the court may grant or deny
the same, and if granted it shall suspend the proceeding for 60 days
(Section 11, R 116), if denied or the 60 day period has lapsed without
the petition being resolved, the court shall proceed with the
arraignment and the accused shall enter his plea; If the accused
pleaded guilty to the offense charged, the court shall render its
decision and impose the proper penalty and shall issue a
Commitment Order, otherwise the court shall set the case for pretrial conference;
3.Pre-Trial ConferenceDuring the pre-trial conference, if the case is mediatable, the court
shall refer the case to the proper Mediation and Conciliation Board,
otherwise it shall proceed with the pre-trial conference and schedule
the case for trial. The trial court shall issue a corresponding Pre-trial
Order narrating what transpired during the conference, and which
shall be signed by the accused and the counsel if there are
admissions. Parties are required to submit their respective judicial
affidavits of witnesses 5 days be fore the scheduled pre-trial
conference (R 18). The court may also refer the case for proper
Judicial Dispute Resolution (JDR) for possible settlement if the parties
agree;
4.TrialOn the scheduled trial, the prosecution shall present its evidence and
witnesses with its corresponding judicial affidavit unless in case of
inverted trial (Section 10, R 119), with the right to cross-examine said
witnesses on the part of the accused (Section 5, R 132), but failure to
present its evidence would result to the provisional dismissal of the
action with the express conformity of the accused, subject to its
revival within the period prescribed by the rules (Section 8, R 117).
After the presentation of the prosecution’s evidence and witnesses,
they shall offer their evidence and rest their case (Section 34, R 132),
and in which the accused may file a demurrer to evidence with or
without leave of court (Section 23, R 119). If the demurrer to
evidence is denied and it is with leave of court, the accused may
present its evidence and if it is without leave of court, then he loses
the right to present evidence. If the demurrer to evidence is granted
then the case will be dismissed, and the accused will be acquitted, in
which case the prosecution may avail the remedy of certiorari under
Rule 65 on the ground of grave abuse of discretion on the part of the
judge or deprivation of the right of the prosecution to due process of
law; In case no demurrer to evidence is filed, or the same has been
denied by the court if one is filed with leave of court, then accused
may present his defense evidence. After its presentation it shall be
offered which the court may either admit or exclude. In case of
excluded evidence, accused may tender the same for purposes of
appeal (Section 40, R 132); Rebuttal evidence may be presented by
the prosecution to refute the evidence in chief presented by the
accused (Section 10, R 119), and in the same way, the accused will
have the right to present sur-rebuttal evidence (Section 10, R 119).
Both parties may be required by the court to submit their respective
memoranda within 30 days;
5.JudgmentIn case of adverse decision, the aggrieved party may file a motion for
reconsideration or new trial within 15 days from notice of the
judgment (R 121), unless in case of a judgment of acquittal. Parties
may file an appeal within 15 days from notice of the order of denying
the motion for reconsideration or new trial to the appellate court
observing the “fresh period to appeal” (R 122-125) until it reaches
the Supreme Court by way of Petition for Review on Certiorari under
R 45 in relation to R 125;
6.ExecutionOnce the judgment becomes final and executor, the criminal and civil
liability deemed impliedly instituted in the former shall be executed
(R 39), and the accused shall serve his sentence in accordance with
the penalty imposed.
THE NON-JUDICIAL STAGE
A. WHEN REFERRAL TO THE BARANGAY FOR CONCILIATION IS REQUIRED
crime or offense committed
Filing of a complaint and referral
with barangay
Compromise Agreement
Execution
No Compromise
Certification to File
Action
1.A crime or offense is committed;
2.Barangay ConciliationA written complaint is filed before the barangay for conciliation, if it
falls under its jurisdiction as required by the Local Government Code
(Section 408, RA 7160). The Resolution can be either (a) an amicable
settlement, then a compromise agreement shall be executed which
shall be binding between the parties and which can be executed
within 6 months from its date; otherwise (b) a Certificate to File
Action shall be issued by the Lupon Chairman in order for the
aggrieved party to file an action before the court;
3.Direct filing or Preliminary InvestigationIf the penalty is less than 4 years 2 months and 1 day the aggrieved
party may file the complaint before the proper first level court
otherwise an Affidavit Complaint is filed before the proper
Prosecutor’s Office for purposes of preliminary investigation (Sec. 1,
R 110)
B. WHEN THE CRIME COMMITTED REQUIRES A PRELIMINARY
INVESTIGATION
crime or offense committed
Filing of affidavit-complaint
for preliminary investigation
Dismissal
Issuance of Subpoena
Submission of Counter-Affidavit
by Respondent
Resolution
Filing of MR
Filing of Petition for
Review with Secretary of Justice
Filing of MR
Certiorari / R65
Judicial Stage
1.A crime is committed and penalty imposable is not less than 4
years 2 months and 1 day;
2.Preliminary InvestigationThe aggrieved party may file an Affidavit-Complaint before the
proper Office for purposes of preliminary investigation (Section 1, R
110), which shall hear the case, and a subpoena may be issued by the
investigating prosecutor if there are grounds to believe that an
investigation shall be conducted, otherwise it shall dismiss the case
(Section 3 R 112); The respondent shall submit his Counter-Affidavit
together with his evidence and affidavit of witnesses within 10 days
after receipt of the subpoena, and his failure to do so may result to
the submission of the case for resolution (Section 3, R 112); A
resolution may be issued by the Investigating prosecutor, and if
there is a probable cause he shall file the corresponding information
before the court of proper jurisdiction, otherwise he shall dismiss
the complaint. Aggrieved party may file a motion for reconsideration
of the adverse resolution within 15 days from receipt of the adverse
resolution, and in case of denial, a petition for review within 15 days
from receipt of the Order denying the motion for reconsideration, if
one is filed, to the Secretary of Justice. Aggrieved party may resort to
the remedy of petition for certiorari under R 65 in case of bailable
offense or appeal to the Office of the President by way of Petition
for Review within 15 days in case of non-bailable offense until it
reaches the Supreme Court;
3.Filing of the complaint or Information in courtThe investigating prosecutor shall file the corresponding information
before the court despite the filing of the petition for review before
the Secretary of Justice or the Office of the President, and the judge
will issue a corresponding warrant of arrest (Rule 113) unless it falls
under the rules of Summary Procedure, in which case accused may
either avail the remedy of posting of or application for bail (Rule
114), or motion to suspend proceeding due to the pendency of the
petition for review before the DOJ which shall be limited for a period
of 60 days from the filing of the petition (Section 11, R 116), or a
motion to quash the complaint or information (Section 3, R 117), or
a motion for bill of particulars (R 116);
C. WHEN THE CRIME COMMITTED DOES NOT REQUIRE A PRELIMINARY
INVESTIGATION
crime or offense committed
Metro-Manila / Chartered City
Filing thru
Filing in Court
File with Prosecutor's Office
Prosecutor's
Office
1.A crime is committed and is punishable by less than 4 years 2
months and 1 day;
2.Direct filing; exceptionThe aggrieved party or the officers in charge with the enforcement of
the law files directly a Criminal Complaint before the proper first
level court;
D. WHEN THE SUSPECT OR SUSPECT/S IS/ARE ARRESTED WITHOUT A
WARRANT
crime / offense committed
Warrantless Arrest
Warrantless Arrest
(Section 5 R113)
(Section 5 R113)
Custodial Investigation
RA 7438
Inquest
Motion to Conduct
Resolution Recommending
PI
either for Filing or Release for
Further Proceeding
Judicial Stage
1.An offense or a crime is committed;
2.An arrest in flagrante delicto or hot pursuit is effectedThe person arrested shall be brought to the proper police station for
the conduct of custodial investigation and affording him his rights
during the conduct of said investigation (RA 7438);
3.InquestAfter the custodial investigation, the person arrested shall be
brought to the proper prosecutor’s office for the conduct of inquest
proceeding (Section 7, R 112) if the penalty is not less than 4 years 2
months and 1 day. Resolution-The inquest prosecutor shall
determine whether there was a valid warrantless arrest or not; if
valid he may order the filing of information before the court if there
is sufficient ground to indict the person arrested, or he may cause
the release of the person for further proceeding, if not valid. During
the inquest proceeding and before the filing of a criminal complaint
or information, the person arrested through his counsel may file a
motion to conduct preliminary investigation before the prosecutor’s
office and sign a waiver as required by Article 125 of the Revised
Penal Code, as amended (Section 7, 1st par. R 112) in order for the
arresting officers to avoid criminal liability for arbitrary detention. In
case the motion is granted, the respondent shall undergo the normal
preliminary investigation as prescribed under Section 3 R 112 but will
remain in detention without prejudice to his right to bail;
4.Filing of information in court, proceedings and remediesIn case the criminal information was already filed before the court,
the accused may file a motion to conduct preliminary investigation
before the court where the case is pending within 5 days from
knowledge of the filing of said information or complaint before the
court where the case is pending (Section 7, 3rd par., R 112), or he may
opt to post the necessary bail if it is a bailable offense (r 114), or a
petition for bail in case the offense is a non-bailable one. The court
shall conduct a summary hearing on the petition and shall require
the prosecution to present evidence to prove that the guilt of the
accused is strong. Accused may also file a motion to quash the
information before he enters his plea (Section 3, R 117);
E. WHEN A SEARCH WARRANT IS ISSUED AND IMPLEMENTED
crime or offense committed
Filing of Application
for Search Warrant
Personal Examination to
Determine Probable Cause
Issuance and Implementation
Of Search Warrant
Arrest of Owner
Motion to Quash
If there is no Arrest
Search Warrant
Custodial
Investigation
Direct Filing
Inquest
1.A crime is committed and the suspect is in illegal possession of
personal properties;
2.Application for and issuance of a search warrantA verified application for the issuance of a search warrant may be
filed before any court, and a preliminary examination under oath of
the applicants and the witnesses which shall be personally done by
the judge in the form of a searching inquiry to establish probable
cause (Section 4, R 126). The court may issue a search warrant
particularly describing the place to be searched and the things to be
Filing for PI
seized. The person against whom the search warrant was issued may
file a motion to quash the search warrant (Section 14, R 126) and in
case of denial of the motion, he shall file a petition for certiorari
under Rule 65;
3.ImplementationThe search warrant issued will be implemented by the officers in
charge with the enforcement of the law, and shall cause the seizure
of all personal properties enumerated in the warrant, in the
presence of the lawful owner or at least 2 witnesses. All personal
properties shall be inventoried and returned to the court which
issued the warrant (section 11, R 126). The owner may be arrested,
or in case he is not present a complaint may be filed against him;
4.Custodial Investigation and Inquest-If the owner of the seized
property was arrested, he shall undergo the usual custodial
investigation and afforded his rights during the conduct of such
investigation (R 7438). After the custodial investigation, the person
arrested shall be brought to the proper prosecutor’s office for the
conduct of inquest proceeding (Section 7, R 112). The inquest
prosecutor shall determine whether there was a valid warrantless
arrest, and in which case, he may either order the filing of
information before the court if there is sufficient ground to indict the
person arrested, or he may cause the release of the person for
further proceeding. During the inquest proceeding and before the
filing of a criminal complaint or information, the person arrested
through his counsel may file a motion to conduct preliminary
investigation before the prosecutor’s office and sign a waiver as
required by Article 125 of the Revised Penal Code, as amended
(Section 7, 1st par. R 112) in order for the arresting officers to avoid
criminal liability for arbitrary detention. In case the motion is
granted, the respondent shall 8ndergo the normal preliminary
investigation as prescribed under Section 3 R 112; In case the
criminal information was already filed before the court, the accused
may file a motion to conduct preliminary investigation before the
court where the case is pending within 5 days from knowledge of the
filing of said information or complaint before the court where the
case is pending (Section 7, 3rd par., R 112), or he may opt to post the
necessary bail if it is a bailable offense (r 114), or a petition for bail in
case the offense is a non-bailable one. The court shall conduct a
summary hearing on the petition and shall require the prosecution to
present evidence to prove that the guilt of the accused is strong.
Accused may also file a motion to quash the information before he
enters his plea (Section 3, R 117);
If the owner of the property seized was not arrested a complaint may
be filed by the aggrieved party or the seizing officer before the
proper Prosecutor’s Office for purposes of preliminary investigation
(section 1, R 110), if it is required, which shall hear the case, and a
subpoena shall be issued by the investigating prosecutor if there are
grounds to believe that an investigation shall be conducted,
otherwise it shall dismiss the case (Section 3, R 112). The respondent
shall submit his Counter-Affidavit together with his evidence and
affidavit of witnesses within 10 days after receipt of the subpoena,
and his failure to do so may result to the submission of the case for
resolution (Section 3, R 112); A resolution may be issued by the
Investigating prosecutor, and if there is a probable cause he shall file
the corresponding information before the court of proper
jurisdiction, otherwise he shall dismiss the case. Aggrieved party may
file a motion for reconsideration of the adverse resolution within 15
days from receipt of the adverse resolution, and in case of denial, a
petition for review within 15 days from receipt of the Order denying
the motion for reconsideration, if one is filed, to the Secretary of
Justice. Aggrieved party may resort to the remedy of petitkon for
certiorari under R 65 in case of bailable offense or appeal to the
Office of the President by way of Petition for Review within 15 days
in case of non-bailable offense until it reaches the Supreme Court;
CHAPTER IV. JURISDICTION AND VENUE IN CRIMINAL CASES
A.JURISDICTION
Jurisdiction defined
It is the power of the court to hear, try and decides cases (Herrera v.
Barreto, 25 Phil. 33) and to execute the judgment thereon (Echegaray v.
Secretary of Justice, 301 SCRA 96).
Criminal jurisdiction defined
Criminal jurisdiction is the authority to hear and try a particular offense
and impose the punishment for it (People v. Mariano 71 SCRA 600; Conde
v. Mamento, Jr., 142 SCRA 504), if conviction results.
Venue defined
It is the geographical location where the case shall be instituted, heard and
tried. In criminal cases, venue is jurisdictional. A court cannot exercise
jurisdiction over an offense committed outside its limited territory.
Classification of Jurisdiction
General – the power of the court to adjudicate all controversies except those
expressly withheld from its plenary powers. It extends to all controversies
which may be brought before a court within the legal bounds of rights and
remedies.
Limited or Special- where the authority to try and decide is limited to
particular cases only and subject to such limitations as may be provided by
the governing law. It is confined to particular causes, or which can be
exercised only under the limitations and circumstances prescribed by the
statute.
Original- is the power of the court to take judicial cognizance of a case for
the first time under the conditions provided by law.
Exclusive- is the power to adjudicate a case or proceeding to the exclusion
of all other courts at that stage.
Appellate- the power and authority conferred upon a superior court to rehear
and determine causes which have been tried in lower courts, the cognizance
which a superior court takes of a case removed to it, by appeal or writ of
error, from the decision of the lower court, or the review by a superior court
of the final judgment or order of some lower courts.
Concurrent or coordinate or confluent- is the power conferred upon
different courts, whether of the same or different ranks or levels, to take
cognizance at the same stage of the same case in the same or different
judicial territories.
Doctrine of hierarchy of courts- is the doctrine that requires respect for the
hierarchy of courts to ensure that every level of the judiciary performs its
designated role in an effective and efficient manner. Trial courts do not only
determine facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include
the validity of an ordinance, statute or even an executive issuance in relation
to the Constitution. To effectively perform these functions, they are
territorially organized into regions and then into branches. Their writs
generally reach within those territorial boundaries. Necessarily, they mostly
perform the all-important task of inferring the facts from the evidence as
these are physically presented before them. In many instances, the facts
occur within their territorial jurisdiction, which properly present the ‘actual
case’ that makes ripe a determination of the constitutionality of such action.
The consequences or course are national in scope. There are, however, some
cases where resort to courts at their level would not be practical considering
their decisions could still be appealed before the higher courts, such as the
Court of Appeals. (The Diocese of Bacolod, etc. v. Comelec, GR No.
205728, January 21, 2015).
Doctrine of Primary Jurisdiction- A criminal charge for violation of the
Securities Regulation Code is a specialized dispute. Hence, it must first be
referred to an administrative agency of special competence, i.e., the SEC.
Under the doctrine of primary jurisdiction, courts will not determine a
controversy involving a question within the jurisdiction of the administrative
tribunal where the question demands the exercise of sound administrative
discretion requiring the specialized knowledge and expertise of said
administrative tribunal to determine technical and intricate matters of fact.
The Securities Regulation Code is a special law. Its enforcement is
particularly vested in the SEC (Pua and Pua v. Citibank, GR No. 180064,
Sept. 16, 2013).
Concurrent jurisdiction in criminal cases:
(1) In criminal cases, concurrent original jurisdiction over the subject
matter may now be said to exist only between the SC and the RTC in
cases affecting ambassadors, public ministers and consuls.
(2) In the matter of territorial jurisdiction, concurrent jurisdiction
between courts of equal rank may result in continuing crimes, crimes
committed on a railroad train, etc.
(3) Finally branches of the same court in the same geographical territory
are possessed of concurrent jurisdiction.
MEANINGS OF REQUISITES OF
CRIMINAL JURISDICTION
1.Jurisdiction over subject matter;
The offense is one, which the court is by law authorized to take
cognizance of.
This refers to the authority of the court to hear and determine a particular
criminal case.
Jurisdiction over the subject matter- is the power to hear and determine
the general class to which the proceedings in question belong.
2.1 Jurisdiction over the subject matter determined by:
(a) Penalty attached;
The jurisdiction of a court in criminal cases is determined by the penalty
imposable, and not by the penalty ultimately imposed. (Guevara v.
Almodovar, 169 SCRA 476; People v. Lagon, 185 SCRA 446-447).
The additional penalty for habitual delinquency is not considered in
determining which court shall have jurisdiction over a criminal case because
such delinquency is not a crime (BP Blg. 129; El Pueblo de Filipinas v. San
Juan, 69 Phil. 347).
(b) Nature of the offense charged (Id. Pueblo de Filipinas v. San Juan); and
ex: Crimes committed by public officers fall within the jurisdiction of the
Sandiganbayan
The jurisdiction of a court to try a criminal action is determined not by the
law in force at the time of the commission of the offense, but by the law in
force at the time of the institution of the action (De la Cruz v. Moya, 160
SCRA 838).
Determination of criminal jurisdiction over the subject matter-
1) Determined by the allegations in the complaint or information not by
the results of proof or by the trial court’s appreciation of the evidence
presented.
2) Determined by the nature of the offense and/or penalty attached
thereto and not what may be meted out after trial.
3) Determined by the law in force at the time of the institution of the
criminal action and not at the time of its commission.
Jurisdiction (over the subject matter, or over the place) is determined by
allegations of Complaint or Information
The averments in the complaint or information identify the crime charged
and determine the court before which it must be tried (People v.
Magallanes, 249 SCRA 212; Olivarez v. CA, 165 SCRA 477).
Jurisdiction over the subject matter. Petitioners alleged that the trial court
gravely abused its discretion amounting to excess of jurisdiction when it
transferred the criminal case filed against the respondents to the jurisdiction
of the military tribunal.
In the case at bar, the information states that respondents, “conspiring
together and mutually helping with one another, taking advantage of their
superior strength, as elements of the Philippine Army, armed with their
government-issued firearms with intent to kill, by means of treachery and
evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and shoot the victims, hitting them on different
parts of their bodies, thereby inflicting upon them multiple gunshot wounds
which caused their deaths.” Murder is a crime punishable under Article 248
of the Revised Penal Code and is within the jurisdiction of the Regional
Trial Court (“RTC”). Hence, irrespective of whether the killing was actually
justified or not, jurisdiction to try the crime charged against the respondents
is vested upon the RTC by law. Fe V. Rapsing, Tita C. Villanueva and Annie
F. Aparejado, represented by Edgar Aparejado v. Hon. Judge Maximino R.
Ables, of RTC-Branch 47, Masbate City; SSGT. Edison Rural, et al., G.R.
No. 171855, October 15, 2012.
Once vested, it cannot be withdrawn by:
a. Subsequent amendment or stipulation
b. Subsequent statutory amendment of the rules of jurisdiction, unless the
amendatory law expressly provides otherwise or is construed that it is
intended to operate to actions pending before its amendment, in which
case, the court where the action is pending is ousted of jurisdiction and the
pending action will have to be transferred to the court having jurisdiction by
virtue of the amendatory law.
Jurisdiction over a case is lodged with the court in which the criminal action
has been properly instituted. If a party appeals the trial court’s judgment or
final order, jurisdiction is transferred to the appellate court. The execution of
the decision is thus stayed insofar as the appealing party is concerned. The
court of origin then loses jurisdiction over the entire case the moment the
other party’s time to appeal has expired. Any residual jurisdiction of the
court of origin shall cease – including the authority to order execution
pending appeal – the moment the complete records of the case are
transmitted to the appellate court. Consequently, it is the appellate court that
shall have the authority to wield the power to hear, try and decide the case
before it, as well as to enforce its decision and resolutions appurtenant
thereto. That power and authority shall remain with the appellate court until
it finally disposes of the case. Jurisdiction cannot be ousted by any
subsequent event, even if the nature of the incident would have prevented
jurisdiction from attaching in the first place (Artemio Villareal v. People,
Dec. 1, 2014).
2. Jurisdiction over territory where offense was committed;
The offense must have been committed within its territorial jurisdiction.
2.1. General Rule
A criminal case should be instituted and tried in the place where the
offense was committed or any of its essential ingredients took place
(Barrameda v. CA, 313 SCRA 477; Abalos v. People, GR No. 136994, Sept.
17, 2002; Fukuzume v. People, 474 SCRA 580). It is in that court where the
criminal action shall be instituted (Sec. 15[a], R 110, Rules of Court). It is
that court which has the authority to try and decide that particular case.
Thus, venue in a criminal case is an essential element of jurisdiction.
Jurisdiction; territorial jurisdiction of trial court. In criminal cases, venue is
jurisdictional. A court cannot exercise jurisdiction over a person charged
with an offense committed outside its limited territory.
The prosecution must not only prove that the offense was committed, it
must also prove the identity of the accused and the fact that the offense
was committed within the jurisdiction of the court. In this case, the
prosecution failed to show that the offense of estafa under sec. 1(b) of Art.
315 of the Revised Penal Code (“RPC”) was committed within the
jurisdiction of the Regional Trial Court of Makati City. Other than the lone
allegation in the information, there is nothing in the prosecution evidence
which even mentions that any of the elements of the offense were committed
in Makati. The Affidavit of Complaint executed by Elizabeth does not
contain any allegation as to where the offense was committed, and there is
nothing in the documentary evidence offered by the prosecution that points
to where the offense, or any of its elements, was committed. Although the
prosecution alleged that the check issued by petitioner was dishonored in a
bank in Makati, such dishonor is not an element of the offense of estafa
under Article 315, par. 1(b) of the RPC. There being no showing that the
offense was committed within Makati, the Regional Trial Court of that city
has no jurisdiction over the case. Hector Trenas v. People of the
Philippines, G.R. No. 195002, January 25, 2012.
2.2. Exceptions:
2.2.1. Change of venue by Supreme Court Order to avoid a miscarriage of
justice (Sec. 5[4], Art. VIII, 1987 Constitution).
2.2.2. When the law provides otherwise –
e.g.,(1) Sandiganbayan in Quezon City has jurisdiction over crimes
committed elsewhere or
(2) those enumerated under Art. 2 of the Revised Penal Code where the
offense is cognizable before Phil. Courts even if committed outside of the
territory of the Philippines, in which case it shall be cognizable by the court
where the criminal action is first filed (Sec. 15 [d], Rule 110, Rules of Court).
(3)Note also, that under Sec. 2 of RA No. 8249 (An Act Further Defining the
Jurisdiction of the Sandiganbayan), it is provided that when the greater
convenience of the accused and of the witnesses, or other compelling
considerations so require, a case originating from one geographical region
may be heard in another geographical region. For this purpose, the
presiding justice shall authorize any division of the court to hold sessions at
any time and place outise Metero Manila and, where the interest of justice
so requires, outise the territorial boundaries of the Philippines.
2.2.3. Continuing crimes committed during a voyage.
2.2.4. Offenses committed under R.A. 9372 Human Security Act of 2007
(R.A. No. 9372, Sec. 58).
4. Jurisdiction over or authority to bind the person of the accused-
The person charged with the offense must have been brought into its
forum for trial, forcibly or by warrant of arrest or upon his voluntary
submission to the court.
How acquiredJurisdiction over the person of the accused is acquired either by his/her
arrest or voluntary appearance in or sumission to the court (Antiporda v.
Garchitorena, 321 SCRA 551; Cruz v. CA, 388 SCRA 72; Cojuangco v.
Sandignbayan, 300 SCRA 367).
Surrender as mitigating circumstanceJurisprudence requires that a surrender, to be voluntary, must be
spontaneous and must clearly indicate the intent of the accused to submit
himself unconditionally to the authorities either because he acknowledges
his guilt or he wishes to save the authorities the trouble and expense
incidental to his search and capture. The following requisites should
likewise be present:
(1)
(2)
the offender had not actually been arrested;
the offender surrendered himself to a person n authority or to the
latter’s agent;
(3) the surrender was voluntary;
(4) and there is no pending warrant of arrest or information filed.
In this case, the accused surrendered only after having been informed of
the charge of rape against him or about two months from the commission
of the alleged crime. He even denied the said charge upon his purported
surrender. The alleged surrender, therefore, does not qualitfy as a
mitigating circumstance (People v. Sobusa [2010]).
The voluntary appearance of the accused is accomplished either by his:
1) pleading to the merits such as by filing a motion to quash or other
pleadings requiring the exercise of the court’s jurisdiction,
2) appearing for arraignment,
3) entering trial, or
4) by filing bail.
Jurisdiction over the person of the accused and bailOn the matter of bail, since the same is intended to obtain the provisional
liberty of the accused, as a rule, the same cannot be posted before custody
of the accused has been acquired by the judicial authorities, either by his
arrest or voluntary surrender (Miranda v. Tuliao, 486 SCRA 377, 387-388).
A special appearance before the court to challenge the jurisdiction of the
court over the person is not tantamount to estoppel or a waiver of the
objection and is not a voluntary submission to the jurisdiction of the court
(Garcia v. Sandiganbayan, GR No. 170122, October 12, 2009).
Jurisdiction; voluntary submission. As a rule, one who seeks an affirmative
relief is deemed to have submitted to the jurisdiction of the court. Filing
pleadings seeking affirmative relief constitutes voluntary appearance, and
the consequent jurisdiction of one’s person to the jurisdiction of the court.
Thus, by filing several motions before the Regional Trial Court (“RTC”)
seeking the dismissal of the criminal case, respondent Alamil voluntarily
submitted to the jurisdiction of the RTC. Furthermore, custody of the law is
not required for the adjudication of reliefs other than an application for
bail. Dante LA. Jimenez, etc. v. Hon. Edwin Sorongon, etc., et al, G.R. No.
178607, December 5, 2012.
Raising objection to jurisdiction
Period to challenge
The absence of any of these elements may be challenged by an accused at
any stage of the proceedings in the court below or on appeal. Failing to
comply with anyone of them, the resulting judgment of conviction is null
and void (Manila Railroad Co., v. Attorney General, 20 Phil. 523; US v.
Jayme, 24 Phil. 90).
General Rule: The question of jurisdiction over the subject matter and
territorial jurisdiction may be raised at any stage of the proceedings.
Exception: Where there has been estoppel by laches on the party who
raised the question.
While the question of jurisdiction over the person of the accused must be
raised before arraignment otherwise it is waived.
When estoppel by laches to question jurisdiction over the subject matter
appliesLaches is defined as the “failure or neglect for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence,
could or should have been done earlier, it is negligence or omission to assert
a right within a reasonable length of time, warranting a presumption that the
party entitled to assert it either has abandoned it or declined to assert.”
The ruling in People v. Regalario that was based on the landmark doctrine
enunciated in Tijam v. Sibonghanoy on the matter of jurisdiction by estoppel
is the exception rather than the rule. Estoppel by laches may be invoked to
bar the issue of lack of jurisdiction only in cases in which the factual milieu
is analogous to that in the cited case. In such controversies, laches should
have been clearly present; that is, lack of jurisdiction must have been raised
so belatedly as to warrant the presumption that the party entitled to assert it
had abandoned or declined to assert it.
In Sibonghanoy, the defense of lack of jurisdiction was raised for the first
time in a motion to dismiss filed by the Surety almost 15 years after the
questioned ruling had been rendered. At several staged of the proceedings, in
the court a quo as well as in the Court of Appeals, the Surety invoked the
jurisdiction of the said courts to obtain affirmative relief and submitted its
case for final adjudication on the merits. It was only when the adverse
decision was rendered by the Court of Appeals that it finally woke up to
raise the question of jurisdiction (Cosco Philippines Shipping Inc., v.
Kemper Insurance Company, GR No. 179488, April 23, 2012).
JURISDICTION OVER THE SUBJECT MATTER
JURISDICTION OF THE SUPREME
COURT
CRIMINAL CASES
EXCLUSIVE ORIGINAL JURISDICTION
Petitions for certiorari, prohibition and mandamus against CA and
Sandiganbayan
CONCURRENT JURISDICTION
a) With the CA and RTC: petitions for certiorari, prohibition and
mandamus against the MTC
b) With the CA: petitions for certiorari, prohibition and mandamus
against the RTC
c) with Sandiganbayan: petitions for mandamus, prohibition,
certiorari, habeas corpus, injunction and ancillary writs 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.
APPELLATE JURISDICTION
a) by ordinary appeal-from the RTC in all criminal cases
involving offenses for which the penalty is reclusion perpetua or
life imprisonment, and those involving other offenses which,
although not so punished, arose out of the same occurrence or
which may have been committed by the accused on the same
occasion;
b) Automatic review where death penalty is imposed.
c) By petition for review on Certiorari from the CA,
Sandiganbayan and from the RTC where only error or
question of law is involved
 Note: In PP vs. Mateo (2004), the SC held that while the
Fundamental Law requires a mandatory review by the SC of cases
where the penalty imposed is reclusion perpetua, life imprisonment or
death, nowhere however, has it proscribed an intermediate review. If
only to ensure utmost circumspection before the penalty of reclusion
perpetua, life imprisonment or death is imposed, the Court now
deems it wise and compelling to provide in these cases a review by
the CA before the case is elevated to the SC. A prior determination
by the CA on, particularly, the factual issues, would minimize the
possibility of an error of judgment.
 If the CA should affirm the penalty of reclusion perpetua, life
imprisonment or death,
(a)
(b)
(c)
it could then render judgment imposing the corresponding
penalty as the circumstances so warrant,
refrain from entering judgment and
elevate the entire records of the case to the SC for final
disposition.
JURISDICTION OF THE COURT OF
APPEALS
(69 Justices)
CRIMINAL CASES
EXCLUSIVE ORIGINAL JURISDICTION
a) Actions for annulment of judgment of the RTCs
b) Crimes of Terrorism under Human Security Act of 2007
CONCURRENT ORIGINAL JURISDICTION
a) With the SC: petitions for certiorari, prohibition and mandamus against
the RTC
b) With the SC and RTC: petitions for certiorari, prohibition and
mandamus against the MTC
APPELLATE JURISDICTION
 Notice of Appeal or ordinary appeal
a) From the RTC in the exercise of its original jurisdiction, except
those appealable to the Sandiganbayan
b) From the RTC where penalty imposed is reclusion perpetua or
life imprisonment or where a lesser penalty is imposed but for
offenses committed on the same occasion or which arose out of
the same occurrence that gave rise to the more serious offense
for which the penalty of death, reclusion perpetua or life
imprisonment is imposed (Sec. 3, Rule 122 as amended by AM No.
00-5-03-SC).
 Automatic Review (i.e. no notice of appeal is necessary) from the
RTC in cases wherein the death penalty is imposed.
 Petition for Review from the RTC in cases appealed thereto from the
lower courts and not appealable to the Sandiganbayan.
The Court of Appeals has no jurisdiction over the criminal aspect of
an Ombudsman case. “The Court of Appeals has jurisdiction over
orders, directives and decisions of the Office of the Ombudsman in
administrative disciplinary cases only (Duyon v. CA [2014]).
SANDIGANBAYAN
A. Original and Exclusive Jurisdiction of the Sandiganbayan
This depends upon the nature of the offense and the position of the
accused (Subido v. Sandiganbayan, GR No. 122641, Jan. 20, 1997).
The Sandiganbayan has exclusive and original jurisdiction over cases
involving:
(Nature of the offense)
1. Violations of the Anti-Graft and Corrupt Practices Act; (RA 3019)
2. Violations of Chapter II, Sec. 2, Title VII, Book II of the Revised Penal
Code,
(Position or rank)
where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade '27' and
higher, 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 or 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;
2) Members of Congress and officials thereof classified as Grade '27'
and higher;
3) Members of the judiciary, without prejudice to the provisions of
the Constitution;
4) Chairmen and members of 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.
Note: Salary grade alone does not determine the jurisdiction of the
Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers
enumerated in PD 1606 as amended. While the first part of Sec. 4(A) of the
law covers only officials with salary grade 27 and higher, its second part
specifically includes other executive officials whose positions may not be
with salary grade 27 or higher but who are by express provision of the law
placed under the jurisdiction of said court (Geduspan v. People, GR No.
158187, February 11, 2005; Serana v. Sandiganbayan GR No. 162059,
January 22, 2008 People v. Sandiganbayan and Rolando Plaza GR No.
169004, Sept. 15, 2010).
6) Other offenses or felonies, (or other than those mentioned
above) whether simple or complexed with other crimes, committed
by the public officials and employees mentioned in Subsec. a of this
Section in relation to their office.
Note that the terms “offenses or felonies” in par. 3 are so broad in meaning
and are not restricted to the laws earlier mentioned. These offenses
however, must be those committed by officials “in relation to their office.”
Therefore, when a public official commits a crime, like murder, homicide,
rape, determinative of whether the regular courts or the Sandiganbayan
have/has jurisdiction over the case are:
a) the position or rank of the accused at the time of the commission of the
crime, and
b) whether or not it was committed in relation to office.
If the position is not covered or lower than those enumerated above, even
if committed in relation to office, or even if covered but not committed in
relation to office, the crime will be triable either by the first or second level
(regular) court depending on the imposable penalty, as discussed above.
7)Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1 (Creating the Presidential Commission on
Good Government); 2 (Regarding the Funds, Moneys, Assets, and
Properties Illegally Acquired or Misappropriated by Former President
Ferdinand E. Marcos xxx); 14 (Defining the Jurisdiction Over Cases
Involving the Illgotten Wealth of Former President Ferdinand E.
Marcos xxx); and 14-A (Amending Executive Order No.14), issued in
1986. (RA No. 8249)
Provided that the Regional Trial Court shall have exclusive original
jurisdiction where the information: (a) does not allege any damage to
the government or any bribery; or (b) alleges damage to the
government or bribery arising from the same or closely related
transactions or acts in an amount not exceeding One million pesos
(P1,000,000.00)
Sandiganbayan; original and exclusive jurisdiction of the
Sandiganbayan. P.D. 1606, as amended by R.A. 7975 and R.A.
8249,vests the Sandiganbayan with original exclusive jurisdiction
over civil and criminal cases instituted pursuant to and in connection
with Executive Orders 1, 2, 14 and 14-A, issued in 1986 by then
President Corazon C. Aquino. Executive Order 1 refers to cases of
recovery and sequestration of ill-gotten wealth amassed by the
Marcoses, their relatives, subordinates, and close associates, directly
or through nominees, by taking undue advantage of their public office
and/or by using their powers, authority, influence, connections or
relationships. Executive Order 2 states that the ill-gotten wealth
includes assets and properties in the form of estates and real properties
in the Philippines and abroad. Executive Orders 14 and 14-A pertain
to the Sandiganbayan’s jurisdiction over criminal and civil cases
relative to the ill-gotten wealth of the Marcoses and their cronies.
The amended complaint filed by the Republic to implead Asian Bank
prays for reversion, reconveyance, reconstitution, accounting and
damages. In other words, the Republic would recover ill-gotten
wealth, by virtue of which the properties in question came under
sequestration and are now, for that reason, in custodia legis. Although
the Republic has not imputed any responsibility to Asian Bank for the
illegal accumulation of wealth by the original defendants, or has not
averred that Asian Bank was a business associate, dummy, nominee,
or agent of the Marcoses, the allegation in its amended complaint in
Civil Case No. 0004 that Asian Bank acted with bad faith for ignoring
the sequestration of the properties as ill-gotten wealth has made the
cause of action against Asian Bank incidental or necessarily
connected to the cause of action against the original defendants.
Consequently, the Sandiganbayan has original exclusive jurisdiction
over the claim against Asian Bank, for the Supreme Court has ruled
in Presidential Commission on Good Government v. Sandiganbayan,
that “the Sandiganbayan has original and exclusive jurisdiction
not only over principal causes of action involving recovery of illgotten wealth, but also over all incidents arising from, incidental
to, or related to such cases.” Metropolitan Bank and Trust Company,
as successor-in-interest of Asian Bank Corporation v. Hon. Edilberto
G. Sandoval, et al, G.R. No. 169677, February 18, 2013.
8)Violation of Anti-Money Laundering Act.(RA 9160 as amended by
RA 9194) when committed by public officers and private persons who
are in conspiracy with such public officers.
9) Over petitions for the issuance of 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
B. Original/Concurrent Jurisdiction
Concurrent with the SC and CA
1) Petitions for issuance of writs of certiorari, prohibition,
mandamus, habeas corpus, and injunction and other ancillary
writs in aid of its appellate jurisdiction, including quo warranto
arising in cases falling under said EO 1, 2, 14, and 14-A
2) Petition for issuance of writ of amparo
3) Over petition for habeas data.
Concurrent with the SC, CA and RTC
1) Petitions for writ of amparo and writ of habeas data when action
concerns public data files of government offices;
2) Petitions for certiorari, prohibition and mandamus, relating to an act
or omission of a Municipal Trial Court, corporation, board, officer, or
person.
Appellate jurisdiction
Over decisions and final orders of Regional Trial Courts in the exercise of
their original or appellate jurisdiction under PD 1606 as amended.
E. Jurisprudence involving crimes committed by public officials and
employees:
1.Meaning of crime committed in relation to their office.
The Offense need not be connected with official duties. It is enough that it
is in relation to office. (Lecaroz v. Sandiganbayan, 128 SCRA 324.
Ex: As mayor, the accused Lecaroz ordered policemen to take over the
gasoline station of the complainant. It was held that the police would not
have obeyed his orders were he not the mayor. Or the questionable act of
the mayor is not part of his official duties but was committed by him as
mayor.
2. What should be alleged in the information?
A public official and employee commits a crime in relation to their
office if the offense was intimately connected with the office of the
offender and perpetuated while he is in the performance of his
official function. Mere allegation in the Information that the offense
was committed by the accused public officer in relation to his office
is not sufficient. What is controlling is the specific factual allegations
in the information that would indicate the close intimacy between
the discharge of the accused’s official duties and the commission of
the offense charged, in order to qualify the crime as having been
committed in relation to public office. (Lacson v. Executive Secretary
301 SCRA 298; Soller, et al., v. Sandiganbayan, et al., 357 SCRA 685686).
Jurisdiction; Sandiganbayan.
People of the Philippines v. Luis J. Morales, G.R. No. 166355, May
30, 2011
In this case, the Supreme Court ruled that since respondent
stands charged for violating Section 3(e) of R.A. No. 3019 in his
capacity as president of ExpoCorp — a private corporation and
not a government-owned or controlled corporation –he
(respondent) is beyond the jurisdiction of the Sandiganbayan.
REGIONAL TRIAL COURT
Jurisdiction of Regional Trial Courts
1. Regular cases
1.1. Offenses committed by public officers and employees in relation to
their office, including those employed in government-owned or controlled
corporations, whether simple or complexed with other crimes, where the
penalty prescribed by law is imprisonment exceeding six (6) years, or a
fine exceeding P4,000.00, when the offender’s position carries a salary
scale lower than grade 27.
1.2. All other offenses where the imposable penalty prescribed by law is
imprisonment exceeding six (6) years, irrespective of the fine, regardless of
other imposable accessory or other penalties, including the civil liability
arising from such offense or predicated thereon, irrespective of kind,
nature, value, or amount thereof (Sec. 32, BP 129).
2. Special cases
2.1. Libel is punishable by prision correccional in its minimum and
maximum periods or fine or both.(RPC, Art. 354) Libel committed by public
officers in relation to their office is within the exclusive original
jurisdiction of RTC.(People et al., v. Benipayo, 586 SCRA 420). This would be
normally under the exclusive jurisdiction of MTCs. However, by law this was
expressly placed under the jurisdiction of the RTCs.(Id., Art. 360, RA 1289
and RA 4363).
2.2. Dangerous Drugs cases
Sec. 90. Jurisdiction. – The Supreme Court shall designate special courts
from among the existing Regional Trial Courts in each judicial region to
exclusively try and hear cases involving violations of this Act.
The number of courts designated in each judicial region shall be based on
the population and the number of cases pending in their respective
jurisdictions. Xxx(Pursuant to BP 129, Sec. 23 and in the interest of speedy
and efficient administration of justice, certain RTCs are designated to
exclusively try and decide criminal cases committed within their respective
territotial jurisdictions, as set forth in AO No. 51-96, dated May 3, 1996).
2.3. Violations of the Intellectual Property Code (Rep. Act No. 8293)
regardless of the imposable penalty.
2.4 The public prosecutor has the authority to file a criminal information for
violation of PD 957 and the RTC has the power to hear and adjudicate the
action, the penalty being a P20,000.00 fine and imprisonment of not
exceeding 10 years or both such fine and imprisonment. This penalty brings
the offense within the jurisdiction of the RTC (Victoria P. Cabral v. Jacinto
Uy, et al., GR No. 174584, January 22, 2010).
2.5. Jurisdiction in Money Laundering Cases- The RTC shall have
jurisdiction to try all cases on money laundering. Those committed by
public officers and private persons who are in conspiracy with such public
officers shall be under the jurisdiction of the Sandiganbayan (Sec. 5, RA
9160, Anti Money Laundering Act of 2001).
2.6. illegal recruitment cases as penalized under RA 8042 as amended by RA
10022.
2.7 Violation of Environmental laws, rules and regulations (Sec. 2, R 9, Part
IV of Rules of Procedure of Environmental Cases, AM No. 09-6-8-SC, April
29, 2010).
Jurisdiction over Complex Crimes
Jurisdiction over the whole complex crime must logically be lodged with the
trial court having jurisdiction to impose the maximum and most serious
penalty imposable on an offense forming the complex crime. A comple
crime must be prosecuted integrally, as it were, and not split into its
component offenses and the latter made the subject of multiple
informations possible brought in different courts (Alfredo Cuyos y Tulor v.
Hon. Nicolas P. Garcia, GR No. L-46934, April 15, 1988, 160 SCRA 302)
Where penalty is fine onlyWhere the only penalty provided for by law is a fine, the amount thereof
shall determine the jurisdiction of the court under the original provisions
of BP 129 (Sec. 32[2]) which provided that the MTC shall have exclusive
original jurisdiction over offenses punishable with a fine of not more than
P4,000.00. Thus, where the imposable fine is more than such amount the
RTC has original jurisdiction.
Concurrent (refer to concurrent jurisdiction of the SC, CA and
Sandiganbayan)
With first level courts
Application for Protection Order under Section 10, RA 9282, unless there is
a Family Court in the residence of Petitioner.
Exclusive Appellate jurisdiction
To review judgment, final orders of first level courts in their respective
territorial jurisdiction.
Jurisdiction of Family Courts (RA No. 8369; The RTC may take cognizance
of the cases enumerated in areas where there are no designated Family
Courts)
Family courts have original and exclusive jurisdiction over criminal cases:
1. Where an accused or victim is a minor (RA 9344) at the time of the
commission of the offense. (Sec. 1 of said law provides that the law shall
cover the different stages involving children at risk and children in conflict
with the law from prevention to rehabilitation and reintegration).
2. Against minors charged under the Dangerous Drugs Act of 2002 (Rep.
Act No. 9165);
3. Involving violations of Rep. Act No. 7610 (Anti-Child Abuse Act), as
amended by Rep. Act No. 7658 [1993];
4. Rep. Act No. 9208 (Anti-Trafficking in Persons Act of 2003);
5. Involving domestic violence against women and children under Rep. Act
No. 9262 (Anti-Violence Against Women and their Children Act of 2004);
and
6. Involving child pornography (Rep. Act No. 9775 [2009]).
MUNICIPAL TRIAL COURT
Expanded Exclusive Original Jurisdiction of Municipal Trial Courts (RA
7691)
1. Violations of city or municipal ordinances committed within their
respective territorial jurisdictions (RA 7691 amending BP 129);
2. All offenses punishable with imprisonment not exceeding six (6) years,(a)
irrespective of the amount of the fine, and (b) 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 (Id, Sec. 2 amending BP 129, Sec. 32).
2.1. A municipal trial court has jurisdiction over a case of simple
seduction, penalized under Article 338 of the Revised Penal Code, as
amended, with arresto mayor, regardless of the civil liability, such as
support and acknowledgment of the offspring that may be imposed
under Article 345 of the same Code.
2.2. Imposable accessory penalties that should not be considered in
determining jurisdiction of MTCs refer to the accessory penalties
accompanying (1) prision correccional prescribed in Article 43; (2)
arresto menor prescribed in Article 44; and (3) confiscation and
forfeiture of the proceeds and instruments of the crime prescribed in
Article 45 of the Revised Penal Code.
2.3. Where the offense charged is within the exclusive competence
of the Municipal Trial Court by reason of the penalty (imprisonment,
etc.), it shall have jurisdiction to try and decide the case, even if the
civil liability (such as actual, compensatory, etc.) claimed exceeds its
civil jurisdiction.
3. All offenses (except violations of RA 3019, RA 1379 and Articles 210 –
212, Revised Penal Code) committed by public officers and employees in
relation to their office, including those employed in government-owned or
controlled corporations, and by private individuals charged as co-principals,
accomplices or accessories, punishable with imprisonment of not more
than 6 years with a salary grade of less than 27.
4. Offenses involving damage to property through criminal negligence,
regardless of the value of the property.(Id)
5.Where the imposable penalty is destierro, (RPC Art. 334 imposes
destierro as the penalty for concubinage) the case falls within the exclusive
jurisdiction of the Municipal Trial Court, considering that in the hierarchy of
penalties under Article 71 of the Revised Penal Code, destierro follows
arresto mayor which involves imprisonment.
6.Violations of BP 22 pursuant to Administrative Matter No. 00-11-01-SC,
March 25, 2003;
6. Special jurisdiction- In the absence of all Regional Trial Court Judges in
a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, and
Municipal Circuit Trial Judge may hear and decide petitions for a writ of
habeas corpus or applications for bail in criminal cases in the province or
city where the absent Regional Trial Judges sit (BP 129, Sec. 35).
Cases falling under the Rules on Summary Procedure1.
2.
3.
4.
traffic violations;
violations of the rental law;
violations of city or municpal ordinances; and
all other offenses where the penalty does not exceed 6 months
liabilities arising therefrom, and in offenses involving damage to
property through criminal negligence where the imposable penalty
does not exceed P10,000.
5. Violations of BP 22.
Note: Note that the jurisdiction of the MTC above, is qualified by the
phrase “Except in cases falling within the exclusive jurisdiction of the
Regional Trial Court and of the Sandiganbayan.” This indicates that the
MTC does not at all times have jurisdiction ovef offenses punishable with
imprisonment not exceeding six (6) years if jurisdiction is vested by law
either in the RTC or Sandiganbayan.
Based on Art. 27 of the RPC, the MTC has jurisdiction over offenses
punishable by up to the maximum of prision correccional which shall not
exceed six (6) years. There are however, offenses which even if punishable
by the maximum of prision correccional are not cognizable by the MTC
because of an express provision of law like:
a) libel as defined in Article 335 of the RPC. Under this provision, libel by
means of writings or similar means shall be punishable by prision
correccional in its minimum and medium periods or a fine ranging from
P200 to P600,000 pesos. Nevertheless, under Art. 360 of the RPC, the
criminal action as well as the civil action for such offense shall be filed
simultaneously or separately with the CFI (now RTC).
b) Also, some forms of direct bribery under Art. 210 of the RPC are
punishable by either prision correccional in its medium period or prision
correccional in its maximum period but such felonies are within the
exclusive jurisdiction of the Sandiganbayan pursuant to Sec. 4(A) of PD
1606 as amended.
c) Indirect bribery, a felony punishable by prision correccional in its
medium and maximum periods under Art. 211 of the RPC are likewise
cognizable by the Sandiganbayan pursuant to Sec. 4(A) of PD 1606 as
amended.
SHARI’AH CIRCUIT COURTS (PD 1083)
Art. 155 PD 1083 The Shari’ah Circuit Courts shall have exclusive original
jurisdiction over:
(1)
All cases involving offenses defined and punished under this Code.
Offenses falling under such jurisdiction:
1.illegal solemnization of marriage (Art. 181);
2.marriage before the expiration of ‘idda (Art. 182;
3.offenses relative to a subsequent marriage, divorce, and revocation of
divorce (Art. 183);
4.failure to report for registration (Art. 184);
5.neglect of duty of registrars
Non-applicability of the Revised Penal Code on BigamyArt. 180. Law applicable- The provisions of the Revised Penal Code relative
to the crime of bigamy shall not apply to a person married in accordance
with the provisions of this Code or, before its effectivity, under Muslim law
B. VENUE IN CRIMINAL CASES
Venue is jurisdictional in criminal cases. It can neither be waived nor
subjected to stipulation. The right venue must exist as a matter of law.
Thus, for territorial jurisdiction to attach, the criminal action must be
instituted and tried in the proper court of the municipality, city or
province where the offense was committed or where any of its
essential ingredients took place (People v. Taroy [2011]).
A court cannot exercise jurisdiction over a person charged with an
offense committed outside its limited territory. The prosecution must
not only prove that the offense was committed, it must also prove the
identity of the accused and the fact that the offense was committed
within the jurisdiction of the court. In this case the prosecution failed
to show that the offense of estafa under Section 1(b) of Article 315 of
the Revised Penal Code was committed within the jurisdiction of the
Regional Trial Court of Makati City. (Hector Trenas v. People, GR
No. 195002, January 25, 2012).
SEC. 15 Rule 110. Place where action is to be instituted.
Venue – Where the Action is to be Instituted
1. Rule – The criminal action shall be instituted and tried in the court of the
municipality or territory:
1. where the offense was committed [for local offenses], or
2. where any of its essential ingredients occurred [for transitory or
continuing offenses]
2. Other alternative venues for institution of an action:
1. 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 either in the court of:
a. the place of its departure,
b. any municipality or territory where such train, aircraft, or
other vehicle passed during its trip, or
c. the place of its arrival
2. 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:
a. the first port of entry, or
b. of any municipality or territory where the vessel
passed during such voyage
2. Subject to generally accepted principles of international law
3. When the crime is committed outside the Philippines but punishable
under Art. 2 of the Revised Penal Code:
It shall be cognizable by the court where the criminal action is
first filed
4.Piracy – the venue of piracy, unlike all other crimes, has no territorial
limits. It may be tried anywhere.
5.Libel – the action may be instituted at the election of the offended or
suing party in the province or city:
1. Where the libellous article is printed and
first published; or
2.a.If one of the offended parties is a private
individual, where said individual actually
resides at the time of the commission of the
offense;
2.b.If the offended party is a public official,
where the latter holds office at the time of the
commission of the offense;
Venue of libel on a websiteUnder Arrt. 360 of the RPC, as amended by RA No. 4363, libel cases,
where the complainant is a private individual, is either (1) where the
complainant actually resides at the time of the commission of the
offense; or (2) where the alleged defamatory article was printed and first
published.
If the private complainant opts for the second, the information must
specifically state where the libelous article was printed and first
published. If the libelous article appears on a website, there is no way of
finding out the location of its printing and first publication. It is not
enough for the complainant to lay the venue where the article was
accessed, as this will open the flood gates to the libel suit being filed in
all other locations where the website is also accessed or capable of being
accessed, and spawn the very ills the amendment sought to prevent.
Thus, in cases where the libellous article appears on a website, the
private complainant has the option to file the case in his/her place of
residence, which will not necessitate finding out exctly where the
libellous matter was printed and first published (Bonifacio v. RTC of
Makati, Br. 129, [2010]).
6. In exceptional cases – to ensure a fair and impartial inquiry. The SC
shall have the power to order a change of venue or place of trial to avoid
the miscarriage of justice.
7. In cases filed under BP 22 – the criminal action shall be filed in the
place where the check was issued and bounced. In case of crossedcheck, in the place of depository.
How to state the place of the commission of the offense
General rule: Not necessary to be specificThe statement of the place of the commission of an offense is sufficient if
it can be understood from the allegations of the complaint or information
that the offense was committed or some of its essential ingredients
occurred at some place within the jurisdiction of the court (Sec. 10, R.
110).
Exception:
Where the particular place where the offense was committed is
however, an essential ingredient of the offense like trespass to
dwelling, or is necessary for its identification, the description of the
place of commission of the offense must be specific (Sec. 10, Rule 110).
Reasons why the law prescribe that the case be filed or tried in the place
where the crime was committed.
1. Deterrence - the interest of the public requires that, to secure the best
results and effects in the punishment of crimes, it is necessary to
prosecute and punish the criminal in the very place, as near as may be where
he committed his crime (MRR Co. vs. Atty. General, 20 Phil. 523);
2. As to the interest of the accused, it would cause him great inconvenience
in looking for witnesses and other evidence in another place. (Beltran vs.
Ramos, 96 Phil. 149)
Cases:
1. Violation of anti-fencing decree
People v. De Guzman, 227 SCRA 64, October 5, 1993
Issue:
Is the crime of “fencing” a continuing offense that could allow the
filing of an information thereof in the place where the robbery or theft is
committed and not necessarily where the property unlawfully taken is
found to have later been bought or acquired?
Held:
Fencing is not a continuing offense.
2. Estafa through issuance of check
People v. Grospe, 157 SCRA 154, January 20, 1988
Estafa by postdating or issuing a bad check, may be a transitory or
continuing offense. Its basic elements of deceit and damage may arise
independently in separate places. In this case, deceit took place in
Pampanga, while the damage was inflicted in Bulacan where the check was
dishonored by the drawee bank in that place. Jurisdiction may, therefore,
be entertained by either the Bulacan Court or the Pampanga Court.
Venue in criminal cases under the Migrant Workers and Overseas Filipinos
Act of 1995There is nothing arbitrary or unconstitutional in Congress fixing an
alternative venue for violations of Section 6 of RA 8042 or otherwise known
as the Migrant Workers and Overseas Filipinos Act of 1995 (Allowing the
filing of criminal actions at the place of residence of the offended parties)
that differs from the venue established by the Rules on Criminal Procedure
(Ho. Patricia A. Sto. Tomas v. Salac [2012]).
COMMENCEMENT OF CRIMINAL ACTION
FILING OF INFORMATION/COMPLAINT (RULE 110)
SECTION 1. How Criminal Cases are Instituted
 For offenses where a preliminary investigation is required:
By filing the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation
 For all other offenses:
 In Manila and other Chartered Cities:
General Rule – By filing the complaint with the office of the
prosecutor
Exception – If their charters provide otherwise, by filing the
complaint with the office provided therein
 In all other places:
 By filing the complaint or information directly with the MTC, or
 By filing the complaint with the office of the prosecutor.
Whether or not the Filing of the Complaint Interrupts the Running of
the Prescriptive Period of the Crime
 General rule
Yes
 Exception
If provided otherwise in special laws
Difference between commencement of criminal action and institution of
criminal action
When you say “commencement”, generally it is already in the court or it is
filed in court. But “institution” is earlier. When you file a complaint with the
fiscal’s office, for preliminary investigation, for example, it is already an
institution of the criminal action.
As a rule, there is no direct filing of a ciminal case in the RTC because a
prior preliminary investigation or inquest is required when the penalty is
over 4 years and 2 months.
As regards the first level courts a criminal case may be directly filed except
those which require preliminary investigation.
There is also no direct filing with the Metropolitan Trial Court of Manila
and other chartered cities unless otherwise provided in the charter. In
other words, in case of a conflict between a city charter and this provision
of the Rules of Court, the former, being a substantive law, shall prevail.
Effect of the institution of the criminal action on the prescriptive period “The institution of the criminal action shall interrupt the
running of the period of prescription of the offense charged
unless otherwise provided in special laws.” (last paragraph,
Section 1, Rule 110)
"Unless provided otherwise in special laws"/ Rule on prescription
for violations of special laws and municipal ordinances
Offenses under the Rules on Summary ProcedureDistinguish between an offense punishable by the Revised Penal Code and
one punished under the Special law.
If punished under a Special law, the law provided therein on interruption
applies.
Illustration:
ZALDIVIA vs. REYES SR, 211 SCRA 277
(Violation falls under the Rules on Summary Procedure but pushed under
a special law)
FACTS: It was a violation of a municipal ordinance and Arresto Menor
is the imposable penalty. After being filed at the fiscal’s office the fiscal
took his time because according to him the filing of the case with the
fiscal’s office is sufficient to interrupt the running of the prescriptive
period.
The information was filed in court only after 3 months. So the accused
filed a motion to quash on ground of prescription. The Fiscal opposed
arguing that when the case is filed with the fiscal’s office, the running of
prescriptive period is interrupted!”
HELD: The fiscal (now prosecutor) is wrong. The filing of this case
before its office did not interrupt the running of the prescriptive period.
He should have filed that on time before the court.
REODICA vs. COURT OF APPEALS,292 SCRA 87
(Offense falls under Summary Procedure but is punished under the Revised
Penal Code)
FACTS: The charge here was slight physical injuries through reckless
imprudence which is actually punishable by arresto menor. It was filed
with the fiscal’s office within 2 months but it was filed in court beyond 2
months. And definitely, it is covered by the Summary Procedure.
HELD: In the case at bar, this is a felony under the Penal Code. If it is a
felony, the filing with the fiscal’s office is sufficient to interrupt the
running of the prescriptive period even if it is covered by the Summary
Rules.
So why the distinction in the rulings when both are covered by the Rules on
Summary Procedure?
The SC cited Act 3326 which is the law governing prescription of crimes
punished by special laws.
Whereas, Article 90 of the RPC refers to prescription of felonies under the
Penal Code, under Act 3326, it is very clear that the prescription period
for the crime (punished by a special law) is interrupted only upon
judicial proceeding – filing in court.
The SC said: The revised rules of Summary Procedure “cannot be taken to
mean that the prescriptive period is interrupted only by the filing of a
complaint or information directly with said courts. It must be stressed that
prescription in criminal cases is a matter of substantive law. Pursuant to
Section 5(5), Article VIII of the Constitution, this Court, in the exercise of
its rule-making power, is not allowed to diminish, increase or modify
substantive rights. Hence, in case of conflict between the Rule on Summary
Procedure promulgated by this Court and the Revised Penal Code, the latter
prevails.” (Reodica vs. CA, supra)
“xxx. Under, Section 2 thereof, the period of prescription is suspended
only when judicial proceedings are instituted against the guilty party.
Accordingly, this Court held that the prescriptive period was not
interrupted by the filing of the complaint with the Office of the
Provincial Prosecutor, as such did not constitute a judicial proceeding;
what could have tolled the prescriptive period there was only the filing
of the information in the proper court. In the instant case, as the offenses
involved are covered by the Revised Penal Code, Article 91 thereof the
rulings in Francisco and Cuaresma apply. Thus, the prescriptive period for
the quasi offenses in question was interrupted by the filing of the complaint
with the fiscal's office three days after the vehicular mishap and remained
tolled pending the termination of this case. We cannot, therefore, uphold
petitioner's defense of prescription of the offenses charged in the information
in this case” (Reodica vs. CA, supra).
Some cases, however, appear not to strictly follow the line toed by
Zaldivia in cases involving violations of special laws.
Cases:
Sanrio Company Limited vs. Lim GR No. 168662, February 19, 2008
This involves a violation of the Intellectual Property Code, a special law.
Sanrio filed a complaint affidavit with the Task Force on Anti-Intellectual
Piracy (TAPP) of the DOJ against Lim for violation of Sec. 217 (in relation
to Secs. 177 and 178) of the Intellectual Property Code.
The Court categorically ruled that the prescriptive period for the
prosecution of the alleged violation of the IPC was tolled by petitioner's
timely filing of the complaint-affidavit before the TAPP.
In Panaguiton, Jr. v. DOJ, GR No. 167571, November 25, 2008, the issue
raised was whether or not the filing of a complaint for violation of BP 22
before the Office of the Prosecutor interrupts the running of the prescriptive
period for the offense.
The SC declared:
"We agree that Act No. 3326 applies to offenses under BP Blg. 22. An
offense under BP 22 merits the penalty of imprisonment of not less than
thirty (30) days but not more than one year or by a fine, hence under Act
3326, a violation of BP 22 prescribes in 4 years from the commission of the
offense or, if the same be not known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that only the filing of a case
in court can toll the running of the prescriptive period.xxxx
We rule and so hold that the offense has not yet prescribed. Petitioner's
filing of his complaint-affidavit before the Office of the City Prosecutor
x x signified the commencement of the proceedings for the prosecution
of the accused and thus, effectively interrupted the prescriptive period
for the offenses they had been charged under BP 22.
In SEC vs. Interport Resources Corporation GR No. 135808 Oct. 6, 2008
The Court ruled that the prosecution of offenses punishable under the
Revised Securities Act and the Securities Regulations Code is initiated by
the filing of a complaint with the SEC or by an investigation conducted by
the SEC motu proprio. Only after a finding of probable cause is made by the
SEC can the DOJ instigate a preliminary investigation. Thus the
investigation that was commenced by the SEC, soon after it discovered
the questionable acts of the respondents, effectively interrupted the
prescription period. Given the nature and purpose of the investigation
conducted by the SEC, which is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases, such investigation
would surely interrupt the prescription period.
Note:
In the cases of Sanrio, Panaguiton and SEC, cited above, all involved
violations of special laws. Uniformly in these cases, the Court had declared
that the filing of the affidavit-complaint for preliminary investigation
interrupted the running of the prescriptive period.
Where information or complaint is filed before court with no jurisdiction,
prescriptive period is still tolled.
Arambulo v. Laqui, 342 SCRA 740, October 12, 2000
Facts:
A complaint for written libel was filed with the City Prosecution
Office. After conducting preliminary investigation and finding probable
cause, the prosecutor erroneously filed the information before the MTC,
instead of the RTC. After a demurrer to evidence filed by accused, the MTC
dismissed it for lack of jurisdiction.
Issues:
Did the period of prescription continue to run while the case was
pending with the MTC which has no jurisdiction over the offense?
Held:
No. When the City Prosecutor recommended the filing of libel
charges against accused, the proceedings against her were not
terminated, precisely because a prima facie case for libel was found
against her. The resolution of the city prosecutor actually directed the
continuation of the proceedings by the filing of the appropriate
information against her and by the holding of trial on the merits. As such,
when the information for libel was filed with the MTC, the period of
prescription for the crime was still suspended.
Not the injured party’s faultIt is unjust to deprive the injured party of the right to obtain vindication on
account of delays that are not under his control. This is because in criminal
prosecutions, the only thing that the victim of the offense may do on his
part to initiate the prosecution is to file the requisite complaint. In this
case, complainants were not remiss in their right to seek redress against
accused as they filed their complaint before the city prosecutor 42 days
after the alleged crime of libel occurred. It was prosecutor who committed
an error when he filed the complaint with the MTC.
CHAPTER V. RIGHTS OF THE ACCUSED (Rule 1150
Section 1 – Rights of accused at the trial – In all criminal
prosecutions, the accused shall be entitled to the following rights;
a. To be presumed innocent until the contrary is
proved beyond reasonable doubt.
xxxxx
Why is it that in criminal cases an accused enjoys this presumption? Why
does the law give the accused the presumption of innocence?
PEOPLE vs. SEQUERRA
October 12, 1987
HELD: “Confronted by the full panoply of state authority, the accused is
accorded the presumption of innocence to lighten and even reverse the heavy
odds against him. Mere accusation is not enough to convict him, and neither
is the weakness of his defense. The evidence for the prosecution must be
strong per se, strong enough to establish the guilt of the accused beyond
reasonable doubt. Otherwise, he is entitled to be freed.”
“But as solicitous as the Bill of Rights is of the accused, the presumption of
innocence is not an automatic or blanket exoneration. It is at best only an
initial protection. If the prosecution succeeds in refuting the presumption, it
then becomes the outlook of the accused to adduce evidence that will at least
raise that inkling of doubt that he is guilty. Once the armor of the
presumption is pierced, so to speak, it is for the accused to take the offense
and ward off the attack.”
The burden lies on the prosecution to overcome such presumption of
innocence by presenting the quantum of evidence required. In so doing,
the prosecution must rest on the strength of its own evidence and must
not rely on the weakness of the defense. And if the prosecution fails to
meet its burden of proof, the defense may logically not even present
evidence on its own behalf. In such cases the presumption prevails and the
accused should necessarily be acquitted (People vs. Angus GR No. 178778,
Aug. 3, 2010) So the accused cannot rely forever in the presumption of
innocence. This is a disputable presumption. The prosecution can destroy
that presumption by presenting evidence that you are guilty and once the
prosecution has presented that you cannot anymore rely on this presumption.
It is now your duty to present evidence that you are innocent.
Paragraph [a] emphasizes the degree of proof in criminal cases.
"x x x Proof beyond reasonable doubt does not mean such degree of
proof as, excluding possibility of error, produces absolute certainty. Moral
certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind: (Sec. 2 R 133, Rules of Court)
The Court in Mupas vs. People, GR No. 172834, Feb. 6, 2008, describes
reasonable doubt as " that doubt engendered by an investigation of the whole
proof and an inability after such investigation to let the mind rest easy upon
the certainty of guilt."
Presumption continues even on appeal from a judgment of convictionThe fact of respondent's conviction by the RTC does not necessarily warrant
the suspension. Since the convictions are currently on appeal before the CA,
the same have not yet attained finality. As such, the respondent still enjoys
the constitutional presumption of innocence...Until the accused's guilt is
shown (beyond reasonable doubt), the presumption continues and until a
promulgation of final conviction is made, this constitutional mandate
prevails (Re: Conviction of Judge Angeles, AM No. 06-9-545-RTC, Jan. 31,
2008).
Regularity in the performance of official duties and presumption of
innocenceFinally, ruled the Court, the presumption of regularity in the
performance of official duty relied upon by the lower courts cannot by
itself overcome the presumption of innocence nor constitute proof of
guilt beyond reasonable doubt. As a rule, the testimony of public officers
who apprehended the accused is accorded full faith and credit because of the
presumption that they have performed their duties regularly. However, when
the performance of their duties is tainted with irregularities such
presumption is effectively destroyed (People vs. Frondoso, GR No. 177164,
June 30, 2009).
Elements of due process
Aguirre v. People, 363 SCRA 672
Question:
What are the elements of due process in judicial proceedings?
Answer:
The essential requirements of due process are:
1. There must be a court or tribunal clothed with judicial authority to
hear and determine the matter before it;
2. Jurisdiction must be lawfully acquired over the person of the
defendant or property which is the subject of the proceeding;
3. The defendant must be given an opportunity to be heard; and
4. Judgment must be rendered upon lawful hearing.
Validity of Prima facie presumption of guilt in lawHizon v. CA, 265 SCRA 517
Facts:
Hizon challenges the provision of P.D. 704, the Fisheries Decree,
which provides that the discovery of explosives or obnoxious substance in
any fishing boat shall constitute a presumption that the owner or operator
was fishing with the use of explosives or poisonous substance, as a violation
of the constitutional presumption of innocence.
Issue:
Is there a violation of the right to be presumed innocent?
Held:
No. The legislature has the power to provide that proof of certain
facts can constitute a prima facie evidence of guilt provided there is a
rational connection between the fact proved and the fact presumed. To
avoid any constitutional infirmity, the inference of one from proof of the
other must not be arbitrary and unreasonable.
P.D. 704 creates a presumption of guilt based on facts proved and hence is
not constitutionally impermissible. However, the statutory presumption
can only be prima facie. It cannot, under the guise of regulating the
presentation of evidence, operate to preclude accused from presenting his
defense to rebut the fact presumed.
The equipoise rule
Dado v. People, 392 SCRA 46
Issue:
When the evidence presented by the prosecution and the accused
are of equal weight, which side shall prevail?
Held:
Under the equipoise rule, where the evidence on an issue of fact is
in equipoise or there is doubt on which side the evidence preponderates,
the party having the burden of proof loses.
The equipoise rule finds application if the inculpatory 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, for then the evidence does not fulfill the test of moral certainty,
and does not suffice to produce a conviction. Briefly stated, the needed
quantum of proof to convict the accused of the crime charged is lacking.
b.) To be informed of the nature and cause of the accusation
against him.
The rule is that the prosecution can only prove what are alleged in the
information and the accused can only be convicted of the crime
charged if proven.
Rule when there is a Minor variance between the information and the
evidenceDoes conviction for the sale and possession of methamphetamine
hydrochloride (shabu) violate the accused's constitutional right to be
informed if the fact that was established and proven during the trial
was the sale and possession of ephedrine, a regulated drug?
"x x x At a glance, a minor variance between the information and the
evidence does not alter the nature of the offense, nor does it determine
or qualify the crime or penalty, so that even if a discrepancy exists,
this cannot be pleaded as a ground for acquittal. In other words, his
right to be informed of the charges against him has not been violated
because where an accused is charged with a specific crime, he is
duly informed not only of such specific crime, but also of lesser
crimes or offenses included therein (People vs. Noque, GR No.
175319, Jan. 15, 2010).
Waiver
When the counsel of the accused actively participated in the
proceedings this indicates that the accused was fully aware of the
charges against him, otherwise, his counsel would have objected and
informed the court of the blunder (People vs. Pangilinan, 518 SCRA
318)
But the failure to file a motion to quash the information cannot
amount to a waiver of the constitutional right to be informed (Burgos
vs. Sandiganbayan 413 SCRA 385).
How to allege certain qualifying circumstances in rape“Half-sister”
People v. Sajolga, 387 SCRA 519
Issue:
Is the allegation in the information that the victim is a “half-sister” of
the accused sufficient to qualify a charge of rape?
Held:
No. It must be alleged in the information that he is a relative by
consanguinity or affinity, as the case may be, within the third civil degree.
Not only should “relationship by consanguinity or affinity” be alleged, it is
also necessary to specify that such relationship is “within the third civil
degree.” Mere allegation and the stipulation that accused is the brother of
the victim because they have a common mother are not enough to satisfy
the special qualifying circumstance of relationship.
“Step-daughter”
People v. Blancaflor, 421 SCRA 354
Facts:
Accused was charged with the rape of his own 14-year old stepdaughter. Under R.A. 7659, where the victim is less than 18 years of age
and the accused is the common-law-spouse of the parent of the victim, the
imposable penalty is death.
Issue:
Considering that the information merely alleged that the victim is the
“step-daughter” of accused, without specifying her age or the fact that
accused was the common-law spouse of the victim’s mother, can accused
be sentenced to death?
Held:
No. The information did not allege the qualifying circumstance of
minority of complainant and the fact that accused is the common-law
spouse of the victim’s mother, not having been legally married. The correct
allegation should have been that accused is the common-law spouse of the
parent of the victim, as contemplated by law, so that accused may be fully
apprised of the exact charge against him. The minority of the victim and the
offender’s relationship to the victim, which constitute only one special
qualifying circumstance, must be alleged in the information and proved
with certainty. For failure to properly allege in the information the
qualifying circumstance that the victim is under 18 years of age and that
the offender is a common-law-spouse of the parent of the victim, the
special qualifying circumstance of minority and relationship could not be
taken into consideration and accused could only be found guilty of simple
rape which is punishable by reclusion perpetua.
Age/mental retardation
“Minor”
People v. Gaudia, 423 SCRA 520
Facts:
Accused was charged with rape. The victim was below 7 years old at
the time of the incident, but the information merely alleged that she was a
“minor” without stating the precise age.
Issue:
Can accused be convicted of qualified rape and sentenced to death?
Held:
No. Since the information did not allege that the victim was below 7
years old when she was violated, accused was therefore charged with
simple rape, under Sec. 335 of the Revised Penal Code, as amended by R.A.
7659 (Death Penalty Law). Upon its passage, R.A. 7659 introduced 7 new
attendant circumstances, which when present, will transform the crime to
qualified rape, punishable by death. These new attendant circumstances
must be properly pleaded in the information to justify the imposition of the
death penalty. The main purpose of requiring all the elements of a crime to
be set out in the information is to enable the accused to suitably prepare
his defense. It would be a denial of the right of the accused to be informed
of the charges against him and, consequently, a denial of due process, if he
is charged with simple rape and be convicted of its qualified form
punishable with death.
When accused fails to objectPeople v. Orbita, 384 SCRA 393
Issue:
May an accused be convicted of rape of a mental retardate under an
information which failed to allege the victim’s mental state and where
accused failed to object to evidence of her mental retardation?
Held:
Yes. Accused has waived his constitutional right to be informed of the
accusation against him. The records show that accused did not object to
the manifestation made by the prosecution that the victim should first be
examined to determine her mental condition. He neither moved for
reconsideration nor appealed the Order of the trial court directing the
National Center for Mental Health to conduct the mental examination of
the victim. The accused likewise did not oppose the prosecution’s
presentation and offer of evidence that would prove the victim’s mental
condition. During the direct examination of the victim, the public
prosecutor asked permission from the judge and was allowed to propound
leading questions in view of the victim’s mental condition. There was no
objection from the defense.
Mode or manner of commission
As to mode of commission
People v. Atienza, 326 SCRA 802
Question:
May an accused charged in the information with rape committed
through force and intimidation as defined in Art. 335 [1] of the Revised
Penal Code, be convicted of rape under Art. 335 [2] i.e., rape of a woman
who was deprived of reason, including those with the mental capacity of a
child below 12 years old?
Answer:
Yes. An accused charged with rape through one mode of commission
may still be convicted of the crime if the evidence shows another mode of
commission provided that the accused did not object to such evidence.
People v. Ortega, Jr., 276 SCRA 166
Facts:
Accused assisted in concealing the body of a person stabbed by
someone else by dumping it in a well not knowing that the victim was still
alive. As a consequence, the victim died of drowning. Accused was thus
charged as a principal in the crime of murder committed through the
stabbing.
Issue:
May accused be convicted of murder in an information charging him
with the offense through stabbing when the evidence showed that the
death was caused by drowning?
Held:
No. An accused cannot be convicted of an offense, unless it is clearly
charged in the complaint or information. Constitutionally, he has a right to
be informed of the nature and cause of the accusation against him. To
convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right. Thus, accused
cannot be convicted of homicide through drowning in an information that
charges murder by means of stabbing.
Specific acts and/or omission must be alleged not mere conclusionsPeople v. Dimaano, 469 SCRA 14
Issue:
Is the complaint sufficient if it merely states that accused did “try and
attempt to rape” the victim?
Held:
No. For a complaint to be sufficient, it must state the acts or
omissions complained of as constituting the offense. The complaint in this
case fails to allege specific acts or omission constituting the elements of
the crime of rape. Neither does it constitute sufficient allegation of
elements for crimes other than rape, i.e., acts of lasciviousness. The
allegation therein that the accused “tried and attempted to rape” the
complainant not only does not satisfy the test of sufficiency of a complaint
or information, but is merely a conclusion of law by the one who drafted
the complaint. This insufficiency therefore prevents this Court from
rendering a judgment of conviction; otherwise we would be violating the
right of the accused to be informed of the nature of the accusation against
him.
People v. Dela Cruz, 383 SCRA 410
Facts:
Accused was charged with violation of R.A. 7610 which alleges that
he committed sexual abuse on his daughter “either by raping her or
committing acts of lasciviousness on her.”
Issue:
Is the information sufficient to convict accused of the crime?
Held:
No. The allegation in the information that accused “wilfully,
unlawfully and feloniously commit sexual abuse on his daughter [Jeannie
Ann] either by raping her or committing acts of lasciviousness on her” is not
a sufficient averment of the acts constituting the offense as required under
Sec. 8, Rule 110, for these are conclusions of law, not facts. The information
is therefore void for being violative of his constitutionally-guaranteed right
to be informed of the nature and cause of the accusation against him.
Although accused failed to call the attention of both the trial court and this
Court regarding the defects of the information the Court may motu proprio
dismiss said information at this stage.
As to crime committed
People v. Del Rosario, 234 SCRA 246
Issue:
May a person charged with sale of “shabu” be convicted of
possession of the same instead?
Held:
No. Accused cannot be convicted of possession of the “shabu”
contained in a canister and allegedly seized at his house, for the charge
against him was for selling “shabu” with the information alleging that the
“accused, without legal authority did . . . sell to a poseur buyer an
aluminium foil containing Methamphetamine Hydrocholoride...” Sale is
totally different from possession. Art. 1458 of the Civil Code defines sale as
a contract whereby “one of the contracting parties obligates himself to
transfer the ownership of and to deliver a determinate thing, and the other
to pay therefor a price certain in money or its equivalent”, while
“possession is the holding of a thing or the enjoyment of a right” as defined
by Art. 523 of the Civil Code. Accused cannot be convicted of a crime which
is not charged in the information for to do so would deny him the due
process of law.
Date of commission
In violation of BP Blg. 22 date of commission and check number are
essential allegationsAlonto v. People, 445 SCRA 624
Facts:
The information against accused for violation of B.P. 22 charged her
of issuing the postdated check on May 14, 1992. However, the
documentary evidence presented and duly marked was BPI Check No.
831258 in the amount of P25,000 dated April 5, 1992.
Issue:
Can accused be convicted of the offense?
Held:
No. Since the identity of the check enters into the first essential
elements of the offense under Sec. 1 of B.P. 22, that is, that a person
makes, draws or issues a check on account or for value, and the date
thereof involves its second element, namely, that at the time of issue the
maker, drawer or issuer knew that he or she did not have sufficient funds
to cover the same, there is a violation of the right of the accused to be
informed of the nature of the offense charged in view of the variance.
As to check number
Dico v. CA, 452 SCRA 441
Issue:
May accused be convicted of violation of B.P. 22 where the
information charges him of issuing FEBTC Check No. 364903 but the
evidence of the prosecution showed that he in fact issued FEBTC Check No.
369403?
Held:
No. The variance in the identity of the check nullifies the conviction
of accused. The identity of the check enters into the first element of the
offense under Sec. 1 of B.P. 22 – that a person draws or issues a check on
account or for value. There being a discrepancy in the identity of the checks
described in the information and that presented in court, the constitutional
right of accused to be informed of the nature of the offense charged will be
violated if his conviction is upheld.
Failure to object to evidence offered for non-essential allegationsRape
People v. Lucas, 232 SCRA 537
Issue:
May an accused, who failed to object to the testimony of the victim,
be convicted of rape committed on Nov. 26, 1983 when the information
charges him of rape committed on Nov. 26, 1982?
Held:
Yes. Where time or place or any other fact alleged is not an essential
element of the crime charged, conviction may be had on proof of the
commission of the crime, even if it appears that the crime was not
committed at the precise time or place alleged, or if the proof fails to
sustain the existence of some immaterial fact set out in the complaint,
provided it appears that the specific crime charged was in fact committed
prior to the date of the filing of the complaint or information within the
period of the statute of the limitations, and at a place within the
jurisdiction of the court. (U.S. vs. Smith, 2 PHIL 20)
People v. Narawi, 414 SCRA 395
Issue:
May the accused be convicted of rape in an information which failed
to alleged use of force and intimidation?
Held:
Yes. In this case, while the information failed to specifically allege
that the sexual intercourse was committed through force or intimidation,
the prosecution presented evidence, no objection to which was interposed
by accused, that they committed rape through force. Besides, the
information alleged that the sexual intercourse was against the victim’s will.
Number of offenses
People v. Antido, 278 SCRA 425
Issue:
When the information charges an accused with one count of rape,
may he be convicted of 2 counts where he failed to object to the testimony
of the victim that she was raped twice?
Held:
No. Since the information specifically charges the accused with only
one act of rape committed on a specific date, then consistent with the
constitutional right of the accused to be informed of the nature and cause
of accusation against him, he cannot be held liable for other acts of rape.
There can only be one conviction for rape if the information charges only
one offense, even if the evidence shows that more than one was in fact
committed. The right of a person to be informed of the nature and cause of
accusation against him cannot be waived for reasons of public policy.
Conviction of constituent crimes
People v. Legaspi, 246 SCRA 206
Facts:
Accused were charged in 2 separate informations, one for double
murder and the other for carnapping under RA No. 6539. The two cases
arose out of one incident and they were jointly tried in the same RTC
branch.
Issue:
May accused be convicted of the special complex crime of robbery
with double homicide?
Held:
No. Their conviction can only be limited to the crime alleged or
necessarily included in the allegations in the separate informations. What
controls is the description of the offense, as alleged in the information.
While the trial court can hold a joint trial of two or more criminal cases and
can render a consolidated decision, it cannot convict the accused of a
complex crime constitutive of the various crimes alleged in the 2
informations. Thus, the accused were deprived of their constitutional right
to be informed of the nature and cause of the accusation against them.
Where accused is a deaf-mute; the need of an interpreterPeople v. Parazo, 310 SCRA 146
Facts:
Accused was charged with rape. The results of medical examinations
conducted on him indicate that he is a deaf-mute and a mental retardate,
whose mental age is only 7 years and 9 months, and with low IQ of 60 only.
During trial, he was not assisted by a sign language interpreter and he was
convicted and sentenced to death.
Issue:
Is the conviction valid?
Held:
No. The absence of a qualified interpreter in sign language and of any
other means, whether in writing or otherwise, to inform the accused of the
charges against him denied the accused his fundamental right to due
process of law. The accuracy and fairness of the factual process by which
the guilt or innocence of the accused was determined was not safeguarded.
The accused could not be said to have enjoyed the right to be heard by
himself and counsel, and to be informed of the nature and cause of the
accusation against him in the proceedings where his life and liberty were at
stake.
Can you waive the right to be informed of the nature and cause of the
accusation against him?
NO. It is not waivable because public interest is involved in this right, the
public having an interest in seeing to it that no person is unlawfully deprived
of his life or liberty. (U.S. vs. Palisoc, 4 Phil. 207)
There are certain rights of the accused that are waivable; there are certain
rights that cannot be waived. For example: to be presumed innocent until the
contrary is proved – can you waive that?
There was a bar examination in the past, where the examiner asked this
question – “among the rights of the accused outline those which can be
waived and cannot be waived.” So practically you have to know [a] – [i]. It’s
not only a question of enumerate the rights of the accused but segregate
those which can be waived and those which cannot be waived.
Sec 1(c) Right of the Accused to be Present at his Trial
1. Right of the accused to be present at every stage of the proceedings,
from arraignment to promulgation of judgment:
1. General Rule – the accused may waive his right to be present at
the trial pursuant to the stipulations set forth in his bail
2. Exceptions – the accused has to appear:
1. when his presence is specifically ordered by the court for
purposes of identification,
2. during arraignment, and
3. during promulgation of judgment
Trial in absentia2. Effect of absence of the accused without justifiable cause at the trial of
which he had notice:
It shall be considered a waiver of his right to be present thereat
3. Effect when an accused under custody escapes:
He shall be deemed to have waived his right to be present on all
subsequent trial dates until custody over him is regained
But take note that in trial in absentia, it assumes that:
1. the court already acquired jurisdiction over the person of the
accused;
2. accused been arraigned and entered a plea;
3. he has been duly notified; and
4. he failed to appear without justifiable cause.
What is the difference between these two sentences in [c]: “The absence of
the accused without justifiable cause at the trial of which he had notice shall
be considered a waiver of his right to be present thereat” and “when an
accused under custody escapes, he shall be deemed to have waived his right
to be present on all subsequent trial dates until custody over him is
regained”?
In the first sentence, the accused is absent without justifiable cause during
the particular trial date, and so the trial may continue. But he can still appear
in the next trial. He only waived his right to be present on that date but he
has not waived his right to be present on subsequent trial dates. He has not
waived his right to present evidence.
In the second sentence, you escaped or you jumped bail. You are not only
waiving your right to be present on this date but on all subsequent dates.
And therefore, there can be a judgment against you when the prosecution
rests.
This trial in absentia was explained by the SC in the case of
PEOPLE vs. AGBULOS, 222 SCRA 196 (1993)
HELD: The prisoner cannot by simply escaping thwart his continued
prosecution and possibly eventual conviction provided that:
1. he has been arraigned;
2. he has been duly notified of the trial; and
3. his failure to appear is unjustified.
But how can the prosecution establish that the accused, who has escaped,
has been duly notified of the trial? How can you notify a person who is
hiding? And how can you say that his failure to appear is unjustified?
“The fugitive is deemed to have waived such notice precisely
because he has escaped, and it is also this escape that makes his
failure to appear at his trial unjustified. Escape can never be a
legal justification. His escape will, legally speaking, operate to his
disadvantage as he will be unable to attend his trial, which will
continue even in his absence and most likely result in his
conviction.”
GIMENEZ vs. NAZARENO, 160 SCRA 1 (1988)
FACTS: The accused is arraigned, then he escaped from jail. The
prosecution moved for the trial to proceed without him – trial in absentia.
So the prosecution presented all its witnesses, and then it rested and
submitted the case for decision based on the prosecution’s evidence alone
– parang ex-parte ba. The judge said “NO, we will have to hear the
accused. Trial in absentia means the prosecution can present its evidence
without him but the case will not be decided until we catch him because
we have to hear him.” The prosecution went to the SC.
ISSUE #1: Is the court’s interpretation of trial in absentia correct?
HELD: NO. Definitely, that is not the meaning of trial in absentia.
Pagtapos na, eh di tapos na! why wait for the accused? However, there
are questions. Does an accused, who has been duly tried in absentia retain
his rights to present evidence on his behalf and to confront and crossexamine witnesses who testified against him? The court said that, “Upon
the termination of a trial in absentia, the court has the duty to rule
upon the evidence presented in court. The court need not wait for the
time until the accused who escape from custody finally decides to
appear in court to present his evidence and cross-examine the
witnesses against him. To allow the delay of proceedings for this
purpose is to render ineffective the constitutional provision on trial
in absentia.”
ISSUE #2: Why is it that an escapee who has been tried in absentia does
not retain his right to cross-examine witnesses and to present evidence?
How come those rights are lost?
HELD: “By his failure to appear during the trial of which he had notice,
he virtually waived these rights. This Court has consistently held that the
right of the accused to confrontation and cross-examination of witnesses
is a personal right and may be waived. In the same vein, his right to
present evidence on his behalf, a right given to him for his own benefit
and protection, may be waived by him.” So an escape can be considered
a waiver.
ISSUE #3: If judgment is rendered as to the said accused and chances are
you would be convicted, would it not violate his right to be presumed
innocent and right to due process?
HELD: NO, he is still presumed innocent. “A judgment of conviction
must still be based upon the evidence presented in court. Such evidence
must prove him guilty beyond reasonable doubt. Also, there can be no
violation of due process since the accused was given the opportunity to
be heard.” If the prosecution does not present anything, he would be
acquitted.
Presence during trial
Validity of a waiver of appearance
Carredo v. People, 183 SCRA 273
Facts:
After accused was arraigned, he filed a written manifestation which
reads:
“(T)he undersigned accused hereby waives his appearance during the
trial or any stage thereof and he agrees that in case he fails to appear for
trial despite due notice, his absence will be deemed as express waiver of his
right to be present, and the Honorable Court may proceed with the trial of
his case as if he were present. In this connection, he admits that he could
be identified by witnesses who are testifying at the time that said accused
was not present.”
Issue:
May accused be ordered arrested by the court for non-appearance
upon summons to appear for purposes of identification?
Held:
Yes. While it has been stated in People v. Presiding Judge [125 SCRA
269] that as an exception accused may not be compelled to appear even for
identification, it applies only when the accused “unqualifiedly admits in
open court after his arraignment that he is the person named as
defendant in the case on trial,” no more no less. In this case accused only
admits that he can be identified by the prosecution witnesses in his
absence. He did not admit that he is the very person named as defendant in
the case on trial. His admission is vague and far from unqualified. He cannot
therefore seek the benefit of the exception recognized in People v.
Presiding Judge.
Effect of failure to appear in one trial date
Crisostomo v. Sandiganbayan, 456 SCRA 45
Issue:
When accused who is on bail fails to appear for a particular trial date,
does it amount to a waiver of appearance for the subsequent trial dates?
Held:
No. Under Sec. 2(c), Rule 114 and Sec. 1(c), Rule 115 of the Rules of
Court, the non-appearance of the accused on a particular trial date is
merely a waiver of his right to be present for trial on such date only and not
for the succeeding trial dates. It states that “the absence of the accused
without any justifiable cause at the trial on a particular date of which he
had notice shall be considered a waiver of his right to be present during
that trial.” It is only when an accused under custody had been notified of
the date of the trial and escapes that he shall be deemed to have waived
his right to be present on said date and on all subsequent trial dates until
custody is regained.
Invalid trial in absentia
Parada v. Veneracion, 269 SCRA 371
Facts:
Accused was charged with estafa and was out on bail. While trial was
going on, accused changed his address notifying the court through his
counsel as well as the bonding company. When accused failed to appear
during a hearing because notice was sent to his old address, the judge
issued a warrant for his arrest, appointed a counsel de oficio for him,
ordered a trial in absentia, and convicted him on the theory that he waived
his right to present evidence.
Issue:
Was there a valid trial in absentia?
Held:
No. Under Sec. 14[2] of the Bill of Rights, the following are the
requisites of a valid trial in absentia: [1] accused had already been
arraigned; [2] he has been duly notified of the trial; and [3] his failure to
appear is unjustifiable. In this case accused had not been duly notified of
the trial because notice of hearing was sent to his former address despite
the fact that he notified the court of his change of address.
Valid trial in absentia
Gimenez v. Nazareno, 160 SCRA 1
Issues:
When may trial in absentia proceed? Where an accused who has
been arraigned escapes, should the court suspend proceedings until
accused is rearrested?
Held:
Under the Constitution, a “trial in absentia” may be had when the
following requisites are present: 1] that there has been an arraignment; 2]
that the accused has been notified; and 3] that he fails to appear and his
failure to do so is unjustified.
The court need not wait for the time until the accused who escape
from custody finally decides to appear in court to present his evidence and
cross-examine the witnesses against him. To allow the delay of proceedings
for this purpose is to render ineffective the constitutional provision on trial
in absentia. This is buttressed by Sec. 1 [c] of Rule 115 of the Rules on
Criminal Procedure, which states that when an accused under custody had
been notified of the date of the trial and escapes, he shall be deemed to
have waived his right to be present on said date and on all subsequent trial
dates until custody is regained.
Sec. 1 [c] – Right to Counsel during Trial
1. Right of the accused:
To be defended by counsel at every stage of the proceeding from
arraignment to promulgation of judgment
2. Waiver of said right:
The accused, upon motion, 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 counsel.
Right to Counsel is right to efficient counselPeople v. Ferrer, 406 SCRA 658
Question:
What does the right to counsel mean in a criminal case?
Answer:
The right to counsel must be more than just the presence of a lawyer
in the courtroom or the mere propounding of standard questions and
objections. It means that the accused is amply accorded legal assistance
extended by a counsel who commits himself to the cause for the defense
and acts accordingly. It assumes an active involvement by the lawyer in the
proceedings, particularly at the trial, his bearing constantly in mind of the
basic rights of accused, his being well-versed on the case, and his knowing
the fundamental procedures, essential laws and existing jurisprudence. The
right of an accused to counsel finds substance in the performance by the
lawyer of his sworn duty of fidelity to his client. It means an efficient and
truly decisive legal assistance and not a simple perfunctory
representation.
Defense by fake lawyer
People v. Santoclides, 321 SCRA 310
Facts:
Accused was charged and convicted of the crime of rape and
sentenced to reclusion perpetua. During trial, he was represented by a
certain Gualberto C. Ompong, who turned out to be a non-lawyer. On
appeal, he argues that his right to counsel was violated.
Issue:
Is accused correct?
Held:
Yes. The right of accused to counsel was violated, no matter that the
person who represented him had the ability of a seasoned lawyer and
handled the case in a professional and skilful manner. This is so because an
accused person is entitled to be represented by a member of the bar in a
criminal case filed against him. Unless he is represented by a lawyer, there
is a great danger that any defense presented will be inadequate considering
the legal skills needed in court proceedings.
Waiver of right
People v. Tulin, 364 SCRA 10
Facts:
Accused were tried for piracy. They were represented by Tomas
Posadas who presented and examined 7 witnesses before the court
discovered that he was a non-lawyer. Their new lawyer, however,
manifested that accused were adopting the evidence adduced when they
were represented by a non-lawyer. Convicted by the trial court, they now
claim that their right to counsel was violated.
Issue:
Should the conviction be reversed?
Held:
No. The law entitles the accused to be present and to defend himself
in person and by counsel at every stage of the proceedings. However, it is
also provided that rights may be waived, unless the waiver is contrary to
law, public order, public policy, etc. The Rules also states that “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 counsel. By analogy, it is amply shown that the
rights of accused were sufficiently and properly protected by Tomas
Posadas. He knew the technical rules of procedure. Hence, there was a
valid waiver of the right to sufficient representation during the trial,
considering that it was unequivocally, knowingly, and intelligently made
with the full assistance of their new bona fide lawyer.
Non-appearance of counsel is not waiver of right to present evidencePeople v. Diaz, 311 SCRA 585
Facts:
Accused was convicted of raping his own daughter and sentenced to
death. It appears that after the prosecution rested, the case was set for
reception of defense evidence. However, in all 4 settings counsel for the
accused failed to appear despite notice. This was treated by the RTC as a
waiver by the accused of his right to present evidence, and it considered
the case submitted for decision.
Issue:
Does the absence of counsel amount to waiver of the right of
accused to be heard?
Held:
No. Accused has the right to be heard by himself and counsel. He has
also the right to present evidence. Accordingly, denial of due process can
be successfully invoked where no valid waiver of rights has been made. In
this case, we find that under the circumstances, the accused was denied
due process when the successive non-appearance of his counsel was
construed as a waiver of his right to present evidence. Since the imposable
penalty may be death, the RTC should have been more circumspect in
denying accused his opportunity to present his side, particularly since he
himself was present during the four hearings. Clearly, such presence is a
strong indication that accused was interested in defending himself.
Apppointment of counsel de oficio
People v. Larranaga, 421 SCRA 530
Facts:
Accused, who are members of prominent families in Cebu, were
represented by counsel de parte during the trial for kidnapping with rape.
On account of the dilatory motions for postponement, or motions to
withdraw as counsel, filed by their lawyers, the judge directed the Public
Attorney’s Office to act as counsel de oficio for them.
Issue:
Did the judge violate the right of the accused to counsel?
Held:
No. There is no denial of the right where a counsel de oficio was
appointed during the absence of the counsel de parte of accused, pursuant
to the court’s desire to finish the case as early as practicable under the
continuous trial system. Here, accused requested for 3 weeks to one month
to look for new counsel. Such period is unreasonable. Accused could have
hired new lawyers at a shorter time had they wanted to. The constitutional
guarantee of right to counsel does not mean that accused may avoid trial
by neglecting or refusing to secure assistance of counsel and by refusing
to participate in trial. Otherwise, the pace of criminal prosecution will be
entirely dictated by the accused to the detriment of the eventual resolution
of the case.
Appointment of counsel de oficio during trial is not a duty of the judge
during trialSayson v. People, 166 SCRA 680
Issue:
Where an accused who is represented by a counsel de parte appears
for trial without his lawyer, is it incumbent upon the trial judge to appoint a
counsel de oficio for him?
Held:
No. The duty of the court to appoint a counsel de oficio when the
accused has no counsel of choice and desires to employ the services of one
is mandatory only at the time of arraignment [Rule 116, Sec. 6, Revised
Rules of Court.] This is no longer so where the accused has proceeded with
the arraignment and the trial with a counsel of his choice but when the
time for the presentation of the evidence for the defense has arrived, he
appears by himself alone and the absence was inexcusable. At the most,
the appointment of a counsel de oficio in situations like the present case is
discretionary with the trial court, which discretion will not be interfered
with in the absence of abuse.
Ineffective counsel
People v. Bermas, 306 SCRA 135
Facts:
Accused, an indigent, was charged with rape, convicted and
sentenced to death. His first lawyer withdrew after the direct examination
of the victim and cross-examination was done by another de oficio lawyer
who only prepared for 10 minutes. The third de oficio lawyer also wanted
to withdraw but was prevailed upon by the court and he presented the
accused as witness, but later also ceased to appear for unknown reasons.
Issue:
Was the right to counsel of accused violated?
Held:
Yes. Accused was not properly and effectively accorded the right to
counsel. The right to counsel proceeds from the fundamental principle of
due process which basically means that a person must be heard before
being condemned. The right to counsel must be more than just the
presence of a lawyer in the courtroom or the mere propounding of
standard questions and objections. The right to counsel means that the
accused is amply accorded legal assistance extended by a counsel who
commits himself to the cause of the defense and acts accordingly. The right
assumes an active involvement by a lawyer in the proceedings, his bearing
constantly in mind of the basic rights of the accused, his being well-versed
on the case and his knowing the fundamental procedures, essential laws
and existing jurisprudence.
“Intelligent counsel” not covered in the guaranteed right to counselPeople v. Liwanag, 363 SCRA 62
Facts:
Accused was convicted of highway robbery with multiple rape.
During trial he was assisted by counsel de oficio, a PAO lawyer. In the
middle of the trial, he retained the services of counsel de parte. After he
was convicted by the RTC, another lawyer filed the notice of appeal but
failed to file the appellant’s brief. Before the SC he was represented by
another counsel de oficio. He now claims that his right to counsel was
violated because his counsel made insufficient cross-examination of the
prosecution witnesses, and failed to impeach the testimony of complainant
through the use of contradictory evidence.
Issue:
Does the right to counsel include the guarantee of an intelligent
counsel?
Held:
No. The “right to be assisted by counsel” does not presuppose “the
right to an intelligent counsel.” The requirement is not for counsel to be
intelligent, but to be effective. While fairness is the object of Art. III, Sec. 14
(2) of the Constitution, the assistance afforded by counsel to an accused
need only be in accordance with the provisions of the Rules of Court and
the Code of Professional Responsibility. In the Philippine setting, a counsel
assisting an accused is presumed to be providing all the necessary legal
defences which are reasonable under the circumstances in accordance with
said norms. Coupled with the presumption that counsel’s performance was
reasonable under the circumstances, as long as the trial was fair in that
accused was accorded due process by means of an effective assistance of
counsel, then the constitutional requirement that an accused shall have the
right to be heard by himself and counsel is satisfied.
Defending one’s self
People v. Sesbreno, 314 SCRA 87
Facts:
Accused was charged with murder. Being a practicing lawyer, he
insisted on representing himself. Despite prodding by the court and an
offer of the possibility of assistance from the PAO, he handled his own
defense and was convicted.
Issue:
Was the right to counsel of accused violated?
Held:
No. Accused acted as his own counsel. To allege now that his right to
be assisted by counsel was violated is to bend the truth too far. The
constitutional right of the accused to counsel is not violated where he was
represented by a prominent and competent member of the Bar, namely
himself, even if there were others available. He is now stopped from
claiming that the trial court violated his right to be represented by counsel
of his own.
Sec. 1 (d) Right to Testify in his own Behalf
1. Right guaranteed
The accused has the right to testify as a witness in his own
behalf
2. Condition for the exercise of such right:
He can be cross-examined on matters covered by his direct
examination
[deemed a waiver of his right against self-incrimination]
3. Effect of silence on the part of the accused:
It shall not in any manner prejudice him
Right available only to natural individualsThis right applies only to natural individuals. Hence, stated US v.
White 322 US 694, a labor union official cannot refuse to produce books
and records of the union in his custody and required by the court to be
produced. He cannot invoke the privilege against self-incrimination by
contending that the production of the books and records would tend to
incriminate himself and the organization.
This is the right of the accused to testify on his own behalf. But he has no
obligation to testify. If you connect this to the next right – [e] to be exempt
to be a witness against himself (that is why you cannot compel him to
testify) – once he testifies on his own behalf, he waives the privilege against
self-incrimination and he can be cross-examined like any other witness. He
cannot say, “I will testify but I refuse to be cross-examined.” That would be
unfair no?
Waiver of right to testify
People v. Tagana, 424 SCRA 620
Facts:
Accused, together with several others, was charged with murder. During
trial, his counsel manifested to the court that he is invoking the defense of
alibi and denial and was adopting the arguments of one of his co-accused.
Thereafter, counsel for the accused rested. Later accused was
convicted.While his conviction was pending review by the Supreme Court,
he sent a handwritten letter to the Presidential Action Center seeking help
to reopen his case which was duly indorsed to the Court. He claims that he
was never asked to give his statement and was never given a chance to
testify in court.
Issue:
Was accused deprived of his right to testify in his own behalf?
Held:
No. While accused decries his alleged frustrated desire to testify in court,
this is now water under the bridge. Accused had all the right and
opportunity to do so. He was properly represented by his counsel of choice
and there was no hindrance to his testifying except his own volition. While
his silence will not in any manner prejudice him, he cannot now be heard to
complain for his failure to avail of his right to be a witness in his own behalf.
If accused felt that he was deprived of his rights, he could have easily
moved for new trial or reconsideration. He did not.
[e] To be exempt from being compelled to be a witness against
himself.
This is the right against self-incrimination
Mechanical acts
Taking of hair strands
People v. Rondero, 320 SCRA 383
Facts:
Rondero was charged with rape with homicide. When the corpse of
the 9-year old victim was found, tightly gripped in her right hand were hair
strands. To enable the NBI to conduct an examination on the hair strands, it
sent a fax message to the police that hair strands be pulled, no cut, from
Rondero, from the 4 regions of his head for comparison with the specimen.
By then Rondero was detained and he now claims that his hair strands were
taken by the police without his consent.
Issue:
Was his right against self-incrimination violated?
Held:
No. What is proscribed by the right against self-incrimination is the
use of physical or moral compulsion to extort communication from the
accused, and not the inclusion of his body in evidence when it may be
material. For instance, substance emitted from the body of the accused
may be received as evidence in prosecution for rape, and morphine forced
out of his mouth may also be used as evidence against him. Consequently,
although Rondero insists that hair samples were forcibly taken from him
and submitted to the NBI for forensic examination, the hair samples may be
admitted in evidence against him for what is proscribed is the use of
testimonial compulsion or any evidence communicative in nature acquired
from him under duress.
Examination of sperm specimen
People v. Yatar, 428 SCRA 504
Facts:
Accused was convicted of rape with homicide. Among the evidence
presented was the testing of the DNA of the sperm specimen from the
vagina of the victim, which was identified to be that of the gene type of the
accused. Accused contends that the blood sample taken from him as well
as the DNA tests were conducted in violation of his right against selfincrimination.
Issue:
Was the right of accused not to be a witness against himself
violated?
Held:
No. The kernel of the right against self-incrimination is not against all
compulsion, but against testimonial compulsion. The right against selfincrimination is simply against the legal process of extracting from the lips
of the accused an admission of guilt. Hence, a person may be compelled to
submit to fingerprinting, photographing, paraffin, blood and DNA tests, as
there is no testimonial compulsion involved. It must also be noted that the
accused in this case submitted himself for blood sampling that was
conducted in open court in the presence of counsel.
Searching inquiry and self-incrimination
People v. Besonia, 422 SCRA 210
Facts:
Accused pleaded guilty to 2 counts of murder. The RTC conducted a
searching inquiry into the voluntariness and full comprehension of the
consequences of his guilty plea. In the course of the questioning, accused
admitted that he shot the victims with a .38 caliber because they were
planning to kill him. On automatic review of the death sentences, accused
claims that his admissions and confessions violated his right not to testify
against himself.
Issue:
Is the contention correct?
Held:
No. The right against self-incrimination is intended to prevent the
State, with all its coercive powers, from extracting from the suspect
testimony that may convict him and to avoid a person subjected to such
compulsion to perjure himself for his own protection. It does not apply
where, as in these cases, the testimony was freely and voluntarily given by
the accused himself without any compulsion from the agents of the State.
There is nothing in the records that would indicate that accused was forced,
intimidated, or compelled by the trial court or by anybody into admitting
the crimes. At any rate, his plea of guilty and confession or admissions
during the searching inquiry cannot be the sole basis for his conviction.
Take note that the right of the accused against self-incrimination is not
limited to testimonial evidence. According to the SC, it refers not only to
testimonial compulsion but also to production by the accused of
incriminating documents and things. (Villaflor vs. Summers, 41 Phil. 62)
So you cannot subpoena his personal documents.
There was a tricky question in the Bar exam in the past:
PROBLEM: The accused is charged with falsification for writing a falsified
letter. The prosecution presented it as evidence that this letter was written by
the accused. The accused said, “No, that is not my handwriting.” On cross-
examination, he was asked to write on a piece of paper as dictated. The
defense object on the ground of violation of the right to self-incrimination.
Rule on the objection.
ANSWER: The objection should be overruled. The case is not covered by
the right against self-incrimination. He can be compelled because he
testified that it is not his handwriting. From that moment he waived his right
against self-incrimination. It is unfair that you say it is not your signature
and I have no way of telling you to give me a specimen.
How is the right against self-incrimination waived?
The privilege is waived by:
1. the accused taking the stand and testifying as a witness or by freely
answering the incriminating questions put to him. (U.S. vs. Grant, 18
Phil. 122; U.S. vs. Rota, 9 Phil. 426) or;
2. by not objecting to the incriminating question.
What is the reason for the right of an accused against self-incrimination?
The rule was established on the ground of public policy, because if the
accused were required to testify, he would be placed under the strongest
temptation to commit perjury, and of humanity, because it would prevent
the extortion of confession by duress. (U.S. vs. Navarro, 3 Phil. 143)
(f) To confront and cross-examine the witnesses against him at
the trial.
1. Right guaranteed:
The accused has the right to confront and cross-examine the
witnesses against him at the trial
2. Additional benefit granted by Sec. 1[f] – Either party may use as
evidence testimony of a witness who is not present during trial, provided:
1. Said witness is:
1. Deceased,
2. out of or can not with due diligence be found in the
Philippines,
3. Unavailable, or
4. Otherwise unable to testify; and
2. Said testimony was given by the witness in another case or
proceeding:
1. judicial or administrative, and
2. involving the same parties or subject matter; and
3. The adverse party had the opportunity to cross-examine said
witness
Purposes of Right to confrontation
People v. Ortiz-Miyake, 279 SCRA 180
Question:
What are the purposes of the right to confrontation?
Answer:
The right to confrontation has two purposes:
first, to secure the opportunity of cross-examination; and,
second, to allow the judge to observe the deportment and appearance of
the witness while testifying.
Death of witness; failure to cross-examine by accused due to his/her
faultPeople v. Narca, 275 SCRA 696
Facts:
After the prosecution witness testified, accused moved for deferment
of her cross-examination. Before the scheduled date of her crossexamination, the witness died.
Issue:
Must her testimony on direct examination be expunged from the
records?
Held:
No. Where death prevents the cross-examination under such
circumstances that no responsibility of any sort can be ascribed to the
plaintiff or the witness, it seems a harsh measure to strike out all that has
obtained in the direct examination. Besides, mere opportunity and not
actual cross-examination is the essence of the right to cross-examine.
Accused lost such opportunity when he sought the deferment of his crossexamination of the witness, and he only has himself to blame in forever
losing that right by reason of her demise.
Recalling witness for cross-examination
Burden of recalling witness of the prosecution for cross-examination rests
on the accusedPeople v. Digno, Jr., 250 SCRA 237
Issue:
Where a witness for the prosecution has not been cross-examined
after her testimony, who has the burden of ensuring that she is crossexamined at another time?
Held:
It should be the counsel for the opposing party who should move to
cross-examine plaintiff’s [prosecution] witnesses. It is absurd for the
plaintiff [prosecutor] himself to ask the court to schedule the crossexamination of his own witnesses because it is not his obligation to ensure
that his deponents are cross-examined. Having presented his witnesses the
burden shifts to his opponent who must now make the appropriate move.
Discretion of the judge to recall; there is valid ground to recall for crossexamination if failure to do so is without fault of the accusedPeople v. Ortillas, 428 SCRA 659
Facts:
After the only prosecution eye-witness to the murder testified on
direct examination, counsel for the accused moved for postponement.
Thereafter, counsel withdrew and the witness was never subpoenaed nor
presented for cross-examination until the defense rested. In fact, a motion
by the new counsel of accused to cross-examine the witness was denied by
the trial court. Eventually, the judge convicted accused based mainly on the
testimony of the witness.
Issue:
Does the judgment unduly deprive accused of his right to crossexamine the witness?
Held:
Yes. Under Rule 115, Sec. 1(e) of the Revised Rules of Court, the
accused has the right “to confront and cross-examine the witnesses against
him at the trial.” The refusal of the judge to give opportunity to the new
counsel of accused to cross-examine prosecution witness on the ground
that prosecution had already rested its case, is patently a grave abuse of
discretion on his part. While it is well within the trial court’s discretion to
allow the recall of witness, under the foregoing circumstances, the judge
should have known that the interest of justice required that accused should
have been given the opportunity to cross-examine, as it was not his fault
that the witness had not been cross-examined. While a petition for
certiorari could have been duly availed of by counsel for accused to rectify
the judge’s grave abuse of discretion, accused should not be made to suffer
for the failure of his counsel to do so; as a layman, he could not have
known better as to what must be done under the circumstances.
Recalling complainant for additional cross-examination in a rape casePeople v. Dela Cruz, 150 SCRA 617
Issue:
Did the court abuse its discretion in denying a motion of new counsel
to recall private complainant in a rape case for further cross-examination?
Held:
No. There was no manifest abuse of discretion in refusing to allow or
recall complainant to the witness stand for additional cross-examination
on account of a newly retained counsel. The complainant had already
experienced great embarrassment in narrating the sexual abuses on her. To
allow her to be recalled to the witness stand in spite of a previous extensive
cross-examination would be tantamount to harassment.
Testimony in preliminary investigation under the old rulesTestimony of witness who died
De Leon v. People, 210 SCRA 151
Issue:
May the testimony of a witness taken during the preliminary
investigation be used in evidence against the accused where said witness
died before he could testify at the trial?
Held:
Yes. By the express provision of Sec. 1(f) Rule 115 of the Rules of
Court, the testimonies given by witnesses during the preliminary
investigation of the case on trial should be admitted into evidence when
such testimony was taken by question and answer in the presence of
defendant or his attorney, and there was an opportunity for the defendant
to cross-examine the witness who is dead or incapacitated to testify or
cannot with due diligence be found in the Philippines.
Testimony of accused given without counsel
People v. Abano, 145 SCRA 555
Issue:
May the testimony of accused given in the course of a preliminary
investigation without the assistance of counsel be used as evidence against
her during the trial?
Held:
No. The rule against self-incrimination positively intends to avoid and
prohibit the certainly inhuman procedure of compelling a person “to
furnish the missing evidence necessary for his conviction.” The rule may
apply even to a co-accused in a joint trial. The situation would have been
different had accused been assisted by counsel during the preliminary
investigation. For then, she could have availed herself of legal advice on
when to refrain from answering incriminating questions. The absence of
counsel when she appeared as witness during the preliminary investigation
is an irreparable damage which rendered inadmissible accused’s alleged
confession.
Counsel of accused must cross-examine despite personal belief in the
testimony of the prosecution witnessPeople v. Nadera, 324 SCRA 490
Facts:
After the rape victim testified, the following dialogue occurred:
Court:
Any cross?
Atty. Brotonel:
If Your Honor please, we are not conducting any
cross-examination, because this representation, from the demeanor of the
witness, is convinced that she is telling the truth.
Issue:
Was the right of the accused to cross-examine the witness violated?
Held:
Yes. Atty. Brotonel’s decision not to cross-examine the victim is a
glaring example of his manifest lack of enthusiasm for his client’s cause. It
may be that defense counsel personally found the testimony to be
believable. Nevertheless, he had the bounden duty to scrutinize victim’s
testimony to ensure that the constitutional right of the accused to
confront and examine the witnesses against him was not rendered for
naught.
What are the EXCEPTIONS to the right of the accused to confront and
examine witnesses against him?
The following:
1. Second portion of paragraph [f]:
“Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or can not
with due diligence be found in the Philippines,
unavailable, or 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”.
Sometimes there is no choice. Now, one good example where the testimony
of a witness is admissible even if he does not appear in the trial is when the
witness is about to die so you need to take his testimony in advance. In civil
cases we call it deposition. In criminal procedure, deposition is called
conditional examination of a witness. That is governed by Rule 119 Sections
12, 13, and 15.
2.
when there is a separate civil action filed against the
accused by the offended partyNormally, the prosecution witnesses in the criminal case are also the
witnesses for the plaintiff in the civil case. Assuming that the trial of the
civil case is ahead, these witnesses testified during the trial of the civil case,
they were cross-examined by the lawyer of the defendant who is also the
accused in the criminal case. Now, under the law, when the criminal case is
tried, these witnesses have to testify again in the criminal case, practically
they will have to repeat their testimony. The trouble is, in the meantime,
some of these witnesses died.
Can the testimony recorded in the civil case be now admissible in the
criminal case when there is no more confrontation there?
Yes. because that is the exception, “when the testimony of the witness who
is now deceased, 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.”
As a matter of fact, this is also considered as one of the exceptions to the
Hearsay Rule. It is the 11th exception to the Hearsay Rule. Try to connect
this with Rule 130 on Evidence. How many exceptions are there to the
Hearsay Rule? eleven (11) – starting from dying declaration. That is the last
exception – testimony or deposition at a former trial or proceeding. That is
considered as an exception to the right against confrontation.
1. The exceptions to the hearsay rule are likewise exceptions to this right
of the accused. (U.S. vs. Gil, 13 Phil. 530)
If there are 11 exceptions to the hearsay rule, all of them are also exceptions
to this. Like dying declaration, how can you cross-examine a dead person.
One last point, does the right to confront and cross-examine the
witnesses against you, include your right to know their names and
addresses in advance?
NO, the accused has no such right because the case of the prosecution might
be endangered if the accused were to know the prosecution witnesses in
advance, for known witnesses might be subjected to pressure or cowered not
to testify. (People vs. Palacio, L-13933, May 25, 1960) So, you confront
them during the trial, not now.
(g) To have compulsory process issued to secure the attendance of
witnesses and production of other evidence in his behalf.
Requisites
People v. Chua, 356 SCRA 225
Question:
What are the requisites before an accused may be allowed to avail of
the right to compulsory process?
Answer:
The 1973 and 1987 Constitutions expanded the right to compulsory
process which now includes the right to secure the production of evidence
in one’s behalf. Thus, the movant must show: [a] that the evidence is really
material; [b] that he is not guilty of neglect in previously obtaining the
production of such evidence; [c] that the evidence will be available at the
time desired; and [d] that no similar evidence could be obtained.
Suppose my witness is somewhere there in Cagayan de Oro, can I secure a
subpoena to compel him when under the rules on subpoena a witness is not
bound if he resides more than 100 kilometers?
That has already been answered in the cases of PEOPLE VS. MONTEJO
and MILLORCA VS. QUITAIN. The SC said that the 100-km limitation
(formerly 50 kms.) does not apply when you are talking of witnesses for the
defense in a criminal case because of the Constitutional right to have
compulsory process issued to secure the attendance of witnesses in his
behalf. That right cannot be precluded by provisions in the Rules of Court.
(h) To have speedy, impartial and public trial.
There are actually three rights here:
1. the right to a speedy trial;
2. the right to an impartial trial; and
3. the right to a public trial.
Speedy trial
1. The factors, among others, which should be considered in determining
whether to grant a continuance are as follows:
(a) whether the failure to grant such continunace in the proceeding would
be likely to make a continuation of such proceeding impossible, or result in
a miscarriage of justice.
(b) whether the case taken as a whole is so novel, so unusual and so
complex, due to the number of accused or the nature of the prosecution or
otherwise, that it is unreasonable to expect adequate preparation within
the periods of time established by this Act (Sec. 11, Speedy Trial Act)
2. No continuance shall be granted because of general congestion of the
court's calendar, or lack of diligent preparation or failure to obtain available
witnesses on the part of the public prosecutor (ibid).
Right of accused to speedy trial/ delay of the trial in the subject
criminal case to await the outcome of petitioners’ petition for transfer
of venue is a violationChurchille V. Mari and People of the Philippines v. Hon. Rolando L.
Gonzales, Presiding Judge, RTC, Br. 39, Sogo, Southern Leyte and PO1
Rudyard Paloma y Torres, G.R. No. 187728, September 12, 2011.
In this case, the Supreme Court debunked petitioners’ argument that
the RTC dismissed the criminal case against private respondent too
hurriedly, despite the provision in Section 10 of the Speedy Trial Act
of 1998 (Republic Act No. 8493), now incorporated in Section 3, Rule
119 of the Rules of Court which provides that “[a]ny period of delay
resulting from other proceedings concerning the accused” such as
“delays resulting from orders of inhibition, or proceedings relating to
change of venue of cases or transfer from other courts” shall “be
excluded in computing the time within which trial must
commence.”
A careful reading of the above rule would show
that the only delays that may be excluded from the time limit
within which trial must commence are those resulting from
proceedings concerning the accused. The time involved in the
proceedings in a petition for transfer of venue can only be
excluded from said time limit if it was the accused who instituted
the same. Hence, in this case, the time during which the petition
for transfer of venue filed by the private complainant is pending
cannot be excluded from the time limit of thirty (30) days from
receipt of the pre-trial order imposed in Section 1, Rule 119 of
the Rules of Court. An accused’s right to speedy trial is deemed
violated only when the proceeding is attended by vexatious,
capricious, and oppressive delays.
In determining whether petitioner was deprived of the right to speedy
trial, the factors to consider and balance are the following: (a)
duration of the delay; (b) reason therefor; (c) assertion of the
right or failure to assert it; and (d) prejudice caused by such
delay. Here, it must be emphasized that private respondent had
already been deprived of his liberty on two occasions. First, during
the preliminary investigation before the MCTC, when he was
incarcerated from November 18, 2004 to March 16, 2005, or a period
of almost four months; then again, when an Information had already
been issued and since rape is a non-bailable offense, he was
imprisoned beginning June 27, 2008 until the case was dismissed on
January 16, 2009, or a period of over 6 months. Verily, there can be
no cavil that deprivation of liberty for any duration of time is quite
oppressive. Because of private respondent’s continued incarceration,
any delay in trying the case would cause him great prejudice. Thus, it
was absolutely vexatious and oppressive to delay the trial in the
subject criminal case to await the outcome of petitioners’ petition for
transfer of venue, especially in this case where there is no temporary
restraining order or writ of preliminary injunction issued by a higher
court against herein public respondent from further proceeding in the
case.
Please connect this provision on Speedy Trial with Rule 119 Section 9
which is a new provision taken from the Speedy Trial Act. What is the
heading of Section 9 Rule 119?
Remedy where accused is not brought to trial within time limits. So
there is such a provision. When your case will not move, the accused may
question the delay why his case has not been set for trial. That is a new
provision taken from the Speedy Trial Act.
Remedy of the prosecution if accused causes unnecessary delay-
Have the accused tried in absentia or to have waived his right to present
evidence.
Factors to determine violation right to speedy trialYulo v. People, 452 SCRA 705
Issue:
When is the right to speedy trial deemed violated?
Answer:
The right to speedy trial is deemed violated only when the
proceedings are attended by vexatious, capricious, and oppressive
delays, or when unjustified postponements of the trial are asked for
and secured, or when without cause or justifiable motive a long
period of time is allowed to lapse without the party having his case
tried. To determine whether the right has been violated, the
following factors may be considered: [1] the length of the delay; [2]
the reasons for such delay; [3] the assertion or failure to assert such
right by the accused, and [4] the prejudice caused by the delay.
Justifiable delays
Sumbang v. Gen. Court Martial, 337 SCRA 227
Facts:
Sumbang was a member of the Philippine Constabulary
accused before a court martial of killing a civilian on May 29, 1988. In
view of the enactment of R.A. 6975 otherwise known as the
Philippine National Police Law, the composition of the court martial
was changed so that the case remained pending for years. On Sep.
29, 1999, Sumbang moved for the dismissal of the case on the
ground of violation of the right to speedy trial.
Issue:
Was the right of Sumbang to speedy trial violated?
Held:
No. The determination of whether an accused has been denied
the right to speedy trial must have to depend on the surrounding
circumstances of each case. Although it is unfortunate that it took
about 8 years from 1991 before the trial resumed in 1999, the delay
does not amount to violation of the right considering that it could not
be attributable to the prosecution. The delay was due to the changes
in the composition of the court martial. Notably, from the time
Sumbang’s motion to dismiss was filed in 1991, he did not take action
to assert his right. Thus, the supervening delay seems to have been
without his objection hence impliedly with his acquiescence. The
right to speedy trial may be waived.
Remedies of an accused whose rights to a speedy trial is being violated
because the prosecution keeps on postponing the case. How do you invoke
this right to speedy trial?
What are the remedies of an accused whose rights to a speedy trial is being
violated because the prosecution keeps on postponing the case? How do you
invoke this right to speedy trial?
A: There are three (3) possible remedies:
1. The accused should OPPOSE the postponement and insist on
trial. If the court denies the postponement and directs the
prosecution to proceed and cannot do so because he does not
have the evidence, the accused should move for dismissal of the
case on the ground of failure to prosecute or insufficiency of
evidence. (Jaca vs. Blanco, 86 Phil. 452; Gandicela vs. Lutero,
88 Phil. 299; People vs. Diaz, 94 Phil. 714) The dismissal is
equivalent to an acquittal and there is no way for that case to
be brought back because it will amount to double jeopardy.
(People vs. Diaz, 94 Phil. 714)
2. If the court grants the postponement everytime the fiscal asks
for it, over the protest of the accused, the latter’s remedy is
mandamus to compel dismissal of the case; (Mercado vs.
Santos, 66 Phil. 215)
3. If the accused is restrained of his liberty, his remedy is habeas
corpus to obtain his freedom. (Mercado vs. Santos, 66 Phil.
215; Conde vs. Rivera, 45 Phil. 650)
Impartial trial
Widespread media publicity
People v. Sanchez, 302 SCRA 21
Facts:
Mayor Sanchez was convicted of 7 counts of rape with
homicide. Considering the position of accused, the trial was
accompanied by widespread media coverage. On appeal, Sanchez
claims that his right to a fair trial was violated due to the intense
publicity.
Issue:
Does intensive publicity of a trial violate the right to a fair trial?
Held:
No. The right of an accused to a fair trial is not incompatible
with a free press. Pervasive publicity is not per se prejudicial to the
right of an accused to fair trial. It does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his
impartiality. At best accused can only conjure possibility of prejudice
on the part of the trial judge due to the barrage of publicity. But the
test is not the possibility of prejudice but actual prejudice. To
warrant a finding of prejudicial publicity, there must be allegation
and proof that judges have been unduly influenced, not simply that
they might be. Accused must discharge this burden. In this case,
there is no proof that the judge acquired a fixed opinion, or actual
bias as a consequence of extensive media coverage.
Estrada v. Desierto, 356 SCRA 109
Facts:
Former President Estrada seeks a reconsideration of the
decision of the Supreme Court declaring that having resigned from
the presidency, he may be prosecuted for Plunder. Among others, he
contends that his right to an impartial trial has been affected by the
prejudicial pre-trial publicity of the proceedings before the
Ombudsman. He also points to the alleged hate campaign launched
by some newspapers so that the prosecution and the judiciary can no
longer assure him of a sporting chance. He urges the Court to apply
the rule on res ipsa loquitor.
Issue:
Has the former President’s right to fair trial been violated?
Held:
No. The mere fact that the proceeding was given a day to day
coverage does not prove that the publicity so permeated the mind of
the tribunal and impaired his impartiality. To warrant a finding of
prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be.
In this case, the former President has failed to adduce any proof of
actual prejudice developed by the members of the Panel of
Investigators of the Ombudsman. The test of actual prejudice cannot
be replaced with the rule of res ipsa loquitur. The latter rule assumes
that an injury has been suffered and then shifts the burden to the
panel of investigators to prove that the impartiality of its members
has not been affected by said publicity. Such a rule will overturn our
case law that pervasive publicity is not per se prejudicial to the right
of an accused to fair trial. For this reason, we continue to hold that it
is not enough for the former President to conjure possibility of
prejudice but must prove actual prejudice on the part of his
investigators for the Court to sustain his plea.
Live coverage of trial
Re: Request Radio-TV ..., 360 SCRA 248
Facts:
The Kapisanan ng mga Broadkaster ng Pilipinas, an association
representing duly franchised and authorized television and radio
networks, requested the Supreme Court to allow live media coverage
of the trial of former President Estrada. The request was anchored on
the need to assure the public of full transparency in the proceedings.
In effect, the request seeks reconsideration of the 1991 resolution of
the Court which barred live media coverage of all court proceedings.
Issue:
Should live media coverage of court trials be allowed?
Held:
No. The issue involves the weighing out of constitutional
guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights of the
accused, on the other hand, along with the constitutional power of a
court to control its proceedings in ensuring a fair and impartial trial.
When these rights race against each other, the right of the accused
must be preferred. With the possibility of losing his life or liberty, it
must be ensured that accused receives a verdict decreed by an
unprejudiced judge. Television coverage, however, can impair the
testimony in criminal trials, can affect the performance of the
judge, and can destroy the case of the accused in the eyes of the
public. Accordingly, to protect the parties’ right to due process, to
prevent the distraction of the participants in the proceedings and in
the last analysis, to avoid miscarriage of justice, the request is
denied.
Re: Request for Live..., 365 SCRA 62
Facts:
The Secretary of Justice seeks a reconsideration of the
resolution denying permission to televise and broadcast live the trial
of former President Estrada before the Sandiganbayan. Among
others, he argues that if there is a clash between the rights of the
people to public information and the freedom of the press, on the
one hand, and the right of the accused to fair trial, it should be
resolved in favour of the right of the people, because the people, as
repository of democracy are entitled to information; and that live
media coverage is a safeguard against attempts by any party to use
the courts as instruments for the pursuit of selfish interest.
Issue:
Should the previous order be reconsidered?
Held:
No. However, because of the significance of the trial and the
importance of preserving the records, there should be an audio
visual recording of the proceedings. The recordings will not be for
live or real time broadcast but for documentary purposes. Only
later will they be available for public showing, after the
Sandiganbayan shall have promulgated its decision. The master film
shall be deposited in the National Museum and the Records
Management and Archives Office for historical preservation and
exhibition pursuant to law. The audio-visual recording shall be made
under the supervision and control of the Sandiganbayan.
Right to a public trial – this is one of the features of the accusatorial
system. What is the reason for public trial?
The requirement of public trial is for the benefit of the accused, that the
public may see that he is fairly dealt with and not unjustly condemned, and
that the presence of spectators may keep his triers keenly alive to a sense of
responsibility and to the importance of their functions. (1 Cooley,
Constitutional Limitations, p. 647)
Meaning, everybody is on their toes. You don't want to commit a mistake
because the public is watching. The judge, the prosecutor, the witnesses, the
defense counsel, everybody is careful because they are watched by the
public. Look at what happened in the impeachment trial, everybody wanted
to be careful there because, imagine how many millions of people are
watching you there on T.V.
[i] To appeal in all cases allowed and in the manner prescribed by
law
Nature of the right to appeal
People v. de la Concha, 388 SCRA 280
Question:
What is the nature of the right to appeal?
Answer:
The right to appeal is but a statutory right, and the party who seeks
to avail of it must faithfully comply with the rules. These rules are designed
to facilitate an orderly disposition of cases before the appellate courts; they
provide for a system under which suitors may be heard in the correct form
and manner at the prescribed time in an orderly confrontation before a
magistrate.
There is something you will notice here – all the rights of the accused in this
Rule, from [a] to [h], are also found in the Constitution. These are all
Constitutional rights except the last – [i]. The right to appeal is purely
statutory which may be granted or withheld at the pleasure of the State.
(People vs. Ang Gioc, 73 Phil. 366)
SEC 6. Suspension by reason of prejudicial question. – A petition
for suspension of the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation.
When the criminal action has been filed in court for trial, the petition
to suspend shall be filed in the same criminal action at any time before
the prosecution rests. (6a)
(sec. 6 is discussed under Pre-Arraignment remedies of the accused)
CHAPTER VI. BRIEF OUTLINE AND DISCUSSION ON THE STAGES IN THE LIFE
OF A CRIMINAL ACTION
THE NON-JUDICIAL STAGE
A. WHEN REFERRAL TO THE BARANGAY FOR CONCILIATION IS
REQUIRED
crime or offense committed
Filing of a complaint and referral
with barangay
Compromise Agreement
Execution
No Compromise
Certification to File
Action
(5) instances that may cause the commencement of a criminal
action/proceeding:
1) First, by the filing of a written complaint before the barangay falling
within its jurisdiction, as discussed below, for he purpose of amicable
settlement, and in case of failure to arrive at an amicable settlement,
by the filing of the necessary complaint before the Office of the
Prosecutor for the conduct of PI;
2) Second, by the arrest of the person caught in flagrante delicto
committing a crime, and after custodial investigation is conducted, the
arrested person will be subjected to an inquest proceeding to
determine whether or not he should be charged before the proper
court;
3) Third, by virtue of a search warrant issued by the competent court and
implemented by the officers of the law for the search of places and
seizure of goods or articles of a person for acts or omissions in
violation of the provision of law, and the subsequent filing of a
criminal complaint for such violation before the Department of
Justice, Office of the Prosecutor, for the conduct of the required
preliminary investigation;
4) Fourth, by filing a complaint or sworn statement directly with the
DOJ, RSP, Office of the City/Provincial Prosecutor or the Office of
the Ombudsman for the conduct of the required preliminary
investigation, for acts or omission in violation of the penal laws not
falling under the jurisdiction of the barangay under Rule 112 of the
Revised Rules on Criminal Procedure;
5) Fifth, by the filing of the information or complaint directly before the
MTC for those cases not requiring a PI nor covered by the Rules on
Summary Procedure under Sec. 9(b) of Rule 112.
THE KATARUNGANG PAMBARANGAY LAW – RA 7160
Purpose of the law:
The primordial objective of PD 1508 (the Katarungang Pambarangay
Law), now included under RA 7160 (The Local Government Code of
1991), is to reduce the number of court litigations and prevent the
deterioration of the quality of justice, which has been brought about
by the indiscriminate filing of cases in the courts. To attain this
objective, Sec. 412(a) of RA 7160 requires the parties to undergo a
conciliation process before the Lupon Chairman or the Pangkat as a
precondition to filing a complaint in court.(Avelina Zamora, et al., vs.
Heirs of Carmen Izquierdo, GR No. 146195, Nov. 18,2004)
General rule:
It is clearly mandated by Section 412(a) of RA 7160 that no complaint,
petition, or action shall be filed directly or indirectly in court or any
government office for adjudication without first referring the same
with the Lupon falling within its authority for purposes of
conciliation.
Guidelines on the Katarungang Pambarangay Conciliation
Proceedings pursuant to Adm. Circ. No. 14-93
General rule: All disputes are subject to Barangay conciliation pursuant
to the Revised Katarungang Pambarangay Law (formerly PD 1508,
repealed and now replaced by Secs. 399-422, Chapter VII, Title I, Book
III, and Sec. 515, Title I, Book IV, RA 7160, otherwise known as the
Local Government Code of 19910, AND PRIOR RECOURSE
THERETO IS A PRE-CONDITION BEFORE FILING a complaint
in court or any government offices.
Duty of the Judge to Monitor Compliance
All complaints and/or informations filed or raffled to your sala/branch of
the RTC, MeTC, or MTC shall be carefully read and scrutinized to
determine if there has been a compliance with prior Barangay
conciliation procedure under the Revised Katarungang Pambarangay
Law and its IRR, as a pre-condition to judicial action, particularly
whether the certification to file action attached to the records of the case
comply with the requirements.
Substantial Compliance
Milagros G. Lumbuan vs. Alfredo A. Ronquillo, GR No. 155713, May
5,2006
Here, the Lupon/Pangkat Chairman and Lupon/Pangkat Secretary signed
the Certificate To File Action stating that no settlement was reached by
the parties. While admittedly no pangkat was constituted, it was not
denied that the parties met at the office of the Barangay Chairman for
possible settlement. The efforts of the Barangay Chairman, however,
proved futile as no agreement was reached. Although no pangkat was
formed, in our mind, there was substantial compliance with the law. It is
noteworthy that under the aforequoted provision, the confrontation before
the Lupon Chairman or the pangkat is sufficient compliance with the precondition for the filing of the case in court. This is the truth
notwithstanding the mandate of Sec. 410(b) of the same law that the
Barangay Chairman shall constitute a pangkat if he fails in his mediation
efforts. Sec. 410(b) should be construed together with Section 412, as
well as the circumstances obtaining in and peculiar to the case. On this
score, it is significant that the Barangay Chairman or Punong Barangay is
herself the Chairman of the Lupon under the Local Government Code.
Exceptions to the general rule:
Sec. 408 of RA 7160 enumerates the following:
1) where one party is the government, or any subdivision or
instrumentality thereof;
2) Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;
3) Offenses punishable by imprisonment exceeding one (1) year or a fine
exceeding Five thousand pesos (P5,000.00);
4) Offenses where there is no private offended party;
5) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
6) Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
7) Such other classes of disputes which the President may determine in
the interest of justice or upon the recommendation of the Secretary of
Justice.
Further, Sec. 412(b) provides:
“Where parties may go directly to court. – The parties may go
directly to court in the following instances:
1) Where the accused is under detention;
2) Where a person has otherwise been deprived of personal liberty
calling for habeas corpus proceedings;
3) Where actions are coupled with provisional remedies, such as
preliminary injunction, attachment, delivery of personal property,
and support pendent lite; and
4) Where the action may otherwise be barred by the statute of
limitations.
Other instances pursuant to Adm. Circular. No. 14-93
1.Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding one (1) year or a fine over P5,000.00;
2.Offenses where there is no private offended party;
3.Disputes where urgent legal action is necessary to prevent injustice
from being committed or further continued, specifically the following:
a) Criminal cases where accused in under police custody or
detention (See Sec. 412 [b]1, Revised Katarungang
Pambarangay Law);
b) Petitions for habeas corpus by a person illegally deprived of
his rightful custody over another or a person illegally
deprived of his liberty or one acting in his behalf.
c) Actions coupled with provisional remedies such as prelim.
Injunction, attachment, delivery of personal property and
support pendent lite; and
d) Actions which may be barred by the Statute of Limitations
Venue
Sec. 409 RA 7160:
1. Disputes between or among persons actually residing in the same
barangay shall be brought for amicable settlement before the Lupon
of said barangay;
2. Those involving actual residents of different barangays within the
same city or municipality shall be brought in the barangay where
the respondent or any of the respondents actually resides, at the
election of the complainant.
3. However, all disputes which involve real property or any
interest therein shall be brought in the barangay where the real
property or any part thereof is situated.
4. Also, those arising at the workplace where the contending are
employed or at the institution where such parties are enrolled for
study, shall be brought in the barangay where such workplace or
institution is located.
Suspension of Prescriptive Period of Offenses –
While the dispute is under mediation, conciliation, or arbitration, the
prescriptive periods for offenses and cause of action under existing
laws shall be interrupted upon filing of the complaint with the
punong barangay.
Limit to the period of interruptionThat such interruption shall not exceed sixty (60) days from the
filing of the complaint with the punong barangay.
Resumption of prescriptive periodThe prescriptive periods shall resume upon receipt by the
complainant of the complaint or the certificate of repudiation or
of the certification to file action issued by the lupon or pangkat
secretary; Provided, however,
Persons Not Covered by Barangay Law
The above-cited provision of law applies only to cases involving
natural persons, and not where any of the parties is a juridical person
such as corporation, partnership, corporation sole, testate or intestate
estate (Vda. De Borromeo vs. Pogoy, 126 SCRA 217)
Personal Appearance of Parties
The parties must appear in person without the assistance of counsel
or representative, except for minor and incapacitated. (Sec. 415)
Action of Court In Case of Non-Compliance
A case filed in court without compliance with prior Barangay
conciliation which is a pre-condition for formal adjudication (Sec.
412(a) of the Revised Katarungang Pambarangay Law) may be:
1. dismissed upon motion of defendant/s, not for lack of
jurisdiction of the court but for failure to state a cause of
action or prematurity. (Royales vs. IAC, 127 SCRA 470;
Gonzales vs. CA, 151 SCRA 289),
2. or the court may suspend proceedings upon petition of any
party under Sec. 1, Rule 21 of the Rules of Court; and refer the
case motu proprio to the appropriate Barangay authority
applying by analogy Sec. 408[g], 2nd par. Of the Revised Kat.
Pam. Law.(Adm. Cir. 14-93)
Effect of Non-Referral
It is well-settled that the non-referral of a case for barangay
conciliation when so required under the law is not jurisdictional in
nature and may therefore be deemed waived if not raised
seasonably in a motion to dismiss (Banares II vs. Balisisng, et al.,
GR No. 132624, March 13, 2000)
Effect of Amicable Settlement and Arbitration Award
Such amicable settlement and arbitration award entered into by the
parties has the force and effect of a final judgment of a court after
10 days from its date, unless: repudiated. (Sec. 416) or unless a
petition to nullify the award has been filed before the proper
court. (Quiros, et al., vs. Arjona, et al., GR No. 158901, March 9,
2000)
Grounds for Repudiation
When the consent is vitiated by force, violence or intimidation.
Court with Jurisdiction Over Petition to Nullify the Award
Proper city or municipal court
Execution of Amicable Settlement or Arbitration Award
To be enforced by:
1.the lupon within 6 months from the date of the settlement or
2.by action in the appropriate city or municipal court after the
lapse of said period,
Repudiation Of The Settlement
An amicable settlement may be repudiated by
1.
2.
3.
4.
any of the parties to the case;
within 10 days from the date of the settlement;
by filing a sworn statement with the lupon chairman and
such repudiation shall be sufficient basis for the issuance of the
certification to file action (Sec. 418)
Filing of Complaint For PI
In case of failure of the parties to arrive at an amicable settlement
during the barangay conciliation, and a corresponding certificate to
file action is issued, a written complaint or sworn statement may now
be filed before the Office of the Prosecutor for the purpose of PI in
accordance with the provisions of Rule 112 of the Revised Rules on
Criminal Procedure.
B. WHEN THE CRIME COMMITTED REQUIRES A PRELIMINARY
INVESTIGATION
crime or offense committed
Filing of affidavit-complaint
for preliminary investigation
Dismissal
Issuance of Subpoena
Submission of Counter-Affidavit
by Respondent
Resolution
Filing of MR
Filing of Petition for
Review with Secretary of Justice
Filing of MR
Certiorari / R65
Judicial Stage
Rule 112
PRELIMINARY INVESTIGATION,(As Amended by A.M. No. O5-826-SC)
SECTION 1. Preliminary investigation defined; when required.–
Preliminary Investigation
1. Definition – An inquiry or proceeding to determine whether there is
sufficient ground to engender a well-founded belief (or probable cause)
that:
1. a crime has been committed, and
2. the respondent is probably guilty thereof, and should be held for
trial
2. When required to be conducted:
1. Before the filing of a complaint or information in court,
2. For an offense where the penalty prescribed by law is at least 4
years, 2 months and 1 day without regard to the fine
Nature
A statutory not a constitutional right and effects of its absence when
required-
The right to a preliminary investigation is not a constitutional right, but is
merely a right conferred by statute.
The absence of a preliminary investigation (therefore)
(1)
(2)
does not impair the validity of the Information, or otherwise
render the same defective and
neither does it affect the jurisdiction of the court over the case
or constitute a ground for quashing the information (Serapio v.
Sandiganbayan, 396 SCRA 443, January 28, 2003)
Preliminary investigation – precondition to filing a criminal action in
court.
General rule. ―No complaint or information for an offense shall be filed
without a preliminary investigation having been first conducted.
Exceptions or instances when preliminary investigation not required:
1.when the accused was lawfully arrested without warrant for a crime
punishable by imprisonment of not less than 4 years 2 months and 1
day and he does not ask for a preliminary investigation. What is
conducted instead is an inquest; and
2.when the penalty prescribed for the offense charged does not exceed
four (4) years and two (2) months. The cases falling under this
category have been called as direct-filing cases.
Imposable penalty determines whether a preliminary investigation is
requiredWhether or not there is a need for a preliminary investigation under Section
1 in relation to Section 8 of this Rule depends upon the imposable penalty
for the crime charged in the complaint filed with the Prosecutor’s office,
and not upon the imposable penalty for the crime found to have been
committed by the respondent after a preliminary investigation. (San Agustin
vs. People, GR 158211, Aug. 31, 2004).
For this purpose, prescribed penalty, which is the penalty indicated by law
for the crime, is distinct from the imposable penalty, which refers to the
penalty to be imposed upon the accused after considering the evidence
and the attendant modifying circumstances in the case. (People vs.
Ranis, Jr. 389 SCRA 45, 69 [2002])
Purpose
The purpose of a preliminary investigation is merely to determine whether
a crime has been committed and whether there is probable cause to
believe that the person accused of the crime is probably guilty thereof
and should be held for trial.
Quantum of evidence needed for probable causeA finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by
the suspect. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of
guilt (Cruz v. Hon. Gonzales, et al, G.R. No. 173844, April 11, 2012)
For instance, whether the facsimile message is admissible in evidence and
whether the element of deceit in the crime of estafa is present are matters
best ventilated in a full-blown trial, not during the preliminary investigation.
A preliminary investigation is not the occasion for the full and exhaustive
display of the prosecution’s evidence. The presence or absence of the
elements of the crime is evidentiary in nature and is a matter of defense
that may be passed upon after a full-blown trial on the merits. In fine,
the validity and merits of a party’s defense or accusation, as well as the
admissibility of testimonies and evidence, are better ventilated during
trial proper than at the preliminary investigation level (Samuel Lee, et
al., vs. KBC Bank N.V., GR No. 164673, Jan. 15, 2010).
Probable cause can be established with hearsay evidence as long as there
is substantial basis for crediting the hearsay; Substantial evidence v.
substantial basisHearsay evidence is admissible in determining probable cause in a
preliminary investigation because such investigation is merely preliminary,
and does not finally adjudicate rights and obligations of parties. However,
in administrative cases, where rights and obligations are finally adjudicated,
what is required is “substantial evidence” (or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a
conclusion) which cannot rest entirely or even partially on hearsay
evidence. Substantial basis is not the same as substantial evidence because
substantial evidence excludes hearsay evidence while substantial basis can
include hearsay evidence (Sen. Estrada v. Ombudsman [2015])
Preliminary investigation is an evidence-screening procedure for the
purpose of determing whether there is a sufficient ground to engender a
well founded belief that a crime punishable by at least four (4) years ) two
(2) months and one (1) day without regard to the fine has been committed
and that the respondent is probably guilty thereof, and should be held for
trial.”
The ultimate purpose of preliminary investigation:
(1)
is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation
(2)
of crime, from the trouble, expense and anxiety of a public trial,
and
also to protect the state from useless and expensive trials. ( Duterte
vs. Sandiganbayan 289 SCRA 721, 737 [1998]); Marcos vs. Cruz,
68 Phil. 96; Hashim vs. Boncan, 71 Phil. 216)
Duty of an investigating prosecutor during preliminary investigationThe main function of the government prosecutor during the preliminary
investigation is merely
(1) to determine the existence of probable cause, and
(2)to file the corresponding information if he finds it to be so. (Raro
vs. Sandiganbayan, 335 SCRA 581, 605 [2000] citing Cruz, Jr. vs.
People, 233 SCRA 439, 458-459 [1994]).
Not a trial, nor part of the trialThe Supreme Court (SC) in this case cited Metropolitan Bank & Trust Co.
(Metrobank) v. Tobias III, where it stressed that a preliminary
investigation for the purpose of determining the existence of probable
cause is not part of a trial. At a preliminary investigation, the investigating
prosecutor or the Secretary of Justice only determines whether the act or
omission complained of constitutes the offense charged. There is no
definitive standard by which probable cause is determined except to consider
the attendant conditions; the existence of probable cause depends upon the
finding of the public prosecutor conducting the examination, who is called
upon not to disregard the facts presented, and to ensure that his finding
should not run counter to the clear dictates of reason.xxx The rules do not
require that a prosecutor have moral certainty of the guilt of a person for the
latter to be indicted for an offense after the conduct of a preliminary
investigation.
People v. CA, 301 SCRA 475
A full and exhaustive presentation of the parties’ evidence is not required,
but only such as may engender a well-grounded belief than an offense has
been committed and that the accused is probably guilty thereof. By reason
of the abbreviated nature of preliminary investigations, a dismissal of the
charges as a result thereof is not equivalent to a judicial pronouncement
of acquittal.
An executive function-
Neither a judicial nor quasi-judicial proceeding it is an executive
function and cannot be interfered with by the courtWhy Preliminary investigation is neither judicial nor quasi-judicial
The executive determination of probable cause concerns itself with whether
there is enough evidence to support an information being filed. It does not
adjudicate on the rights of parties.
What is judicial or quasi-judicial function?
In Santos v. Go, GR No. 156081, Oct. 19, 2005 the Court held that a public
prosecutor does not perform acts of a quasi-judicial body. It described a
quasi-judicial body as an organ of government other than a court and
other than a legislature which performs adjudicatory functions. Said
body affects the rights of private parties either through adjudication or rule
making. Its awards, when performing adjudicatory functions, determine
the rights of the parties and their decisions have the same effect as
judgments of a court. Such is not the case, according to the Court, when a
public prosecutor conducts a preliminary investigation.
Not being a quasi-judicial body, resolutions to file or not to file are not
appealable to the Court of Appeals under Rule 43In the previous case of Bautista v. CA, GR No. 143375, July 6, 2001, the
Court held that a preliminary investigation does not determine the guilt or
innocence of the accused. He does not exercise adjudication nor rule-making
functions. The court further holds that the Office of the Prosecutor is not a
quasi-judicial body. Necessarily, its decisions approving the filing of a
criminal complaint are not appealable to the Court of Appeals under Rule
43 as are decisions of quasi-judicial bodies enumerated therein.
Differentiated from judicial determination of probable causeThe executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the
crime as defined by law and thus should be held for trial.
Whether or not that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct ascertainment of the
existence of probable cause in a case, is a matter that the trial court itself
does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one
made by the judge to ascertain whether warrant of arrest should be issued
against the accused. The judge must satisfy himself that based on the
evidence submitted, there is a necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the judge finds no
probable cause, the judge cannot be forced to issue the arrest warrant.
Determination of probable cause for filing in court v. determination of
probable cause for issuance of warrant of arrest or commitment order1 A preliminary investigation is conducted by the prosecutor to ascertain
whether the alleged offender should be held for trial, to be subjected to the
expense, rigors and embarrassment of trial or if the offender is to be
released. A preliminary inquiry or a preliminary examination is conducted
by the judge to determine probable cause for the issuance of a warrant of
arrest. This is a judicial function (People vs. Inting, 187 SCRA 788; AAA
vs. Carbonel, 534 SCRA 496).
2. Preliminary investigation is executive in nature. It is part of the
prosecutor’s job. Preliminary examination is judicial in nature and is lodged
with the judge. Sound policy supports this distinction. Otherwise judges
would be unduly laden with the preliminary investigation and examination
of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts (Ledesma vs. CA, 278 SCRA 656; Co
vs.Repiublic, 539 SCRA 147).
Doctrine of separation of powers apply- courts cannot directly decide
matters over which discretionary authority has been delegated to the
executive department.
Further, the SC has repeatedly ruled that the determination of probable
cause, for purposes of preliminary investigation, is an executive
function. Such determination should be free from the court’s
interference save only in exceptional cases where the Department of
Justice gravely abuses its discretion in the issuance of its orders or
resolutions. Loreli Lim Po v. Department of the Justice, et al/Antonio ng
Chiu v. Court of Appeals, et al, G.R. Nos. 195198 & G.R. No. 197098,
February 11, 2013.
Designation of prosecutor by court improper as it violates the principle of
separation of powers-
People v. Navarro, 270 SCRA 393, March 25, 1997
Issue:
In remanding the complaint or information to the provincial
prosecutor, may a judge name or designate a particular assistant
prosecutor to conduct the preliminary investigation of the case?
Held:
No. Preliminary investigation is an executive, not a judicial, function.
As the officer authorized to direct and control the prosecution of criminal
actions, a prosecutor is primarily responsible for ascertaining whether there
is sufficient ground to engender a well-founded belief that an offense has
been committed and that the accused is probably guilty thereof. A judge
cannot directly order an assistant prosecutor, particularly over the
objections of the latter’s superiors, to conduct a preliminary investigation.
To allow him to do so is to authorize him to meddle in the executive and
administrative functions of the prosecutor.
Review of prosecutor’s resolution is thru administrative not judicial
remediesSANCHEZ vs. DEMETRIOU, November 9, 1993
HELD: “The decision of the prosecutor may be reversed or modified by
the Secretary of Justice or in special cases by the President of the
Philippines. But even this Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence
to support at least a prima facie case. The courts try and absolve or
convict the accused but as a rule have no part in the initial decision to
prosecute him. “
Judicial determination of probable cause after filing of information,
not a review of prosecutor’s findingIt does not concern itself with whether there is sufficient basis for the
filing of the information but only whether or not there is sufficient basis
for the issuance of a warrant of arrest so that it can bind the person of the
accused.
While it is within the trial court’s discretion to make an independent
assessment of the evidence on hand, it is only for the purpose of
determining whether a warrant of arrest should be issued. The judge
does not act as an appellate court of the prosecutor and has no capacity to
review the prosecutor’s determination of probable cause; rather, the judge
makes a determination of probable cause independent of the prosecutor’s
fimding (Mendoza v. People [2014]).
Exceptions to non-interference by courts-
Filadams Pharma v. CA, 426 SCRA 460, March 30, 2004
Question:
While as a general policy courts should not interfere in the conduct
of preliminary investigation, leaving the investigating officers sufficient
discretion to determine probable cause, what are the exceptions to the
general rule?
Answer:
The following are the exceptions:
1.) when necessary to afford adequate protection to the constitutional
rights of the accused;
2.) when necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
3.) when there is prejudicial question which is sub judice;
4.) when the acts of the officer are without or in excess of authority;
5.) where the prosecution is under an invalid law, ordinance, or regulation;
6.) when double jeopardy is clearly apparent;
7.) where the court has no jurisdiction over the offense;
8.) where it is a case of persecution rather than prosecution;
9.) where the charges are manifestly false and motivated by the lust for
vengeance; and
10.) when there is clearly no prima facie case against the accused and
amotion to quash on that ground has been denied.
Remedies against refusal to file
Socrates v. Sandiganbayan, 253 SCRA 773, February 20, 1996
Question:
What are the remedies of the offended party in cases where the
government prosecutor unjustifiably refuses to file an information against a
person who appears to be responsible for a crime?
Answer:
Where the government prosecutor unreasonably refuses to file an
information or to include a person as an accused therein despite the fact
that the evidence clearly warrants such action, the offended party has the
following remedies:
(1) in case of grave abuse of discretion, he may file an action for madamus
to compel the prosecutor to file such information;
(2) he may lodge a new complaint against the offenders before the
Ombudsman and have a new examination conducted as required by law;
(3) he institute administrative charges against the erring prosecutor, or a
criminal complaint under Art. 208 of the Revised Penal Code, or a civil
action for damages under Art. 27 of the Civil Code;
(4)he may secure an appointment of another prosecutor; or
(5) he may institute another criminal action if no double jeopardy is
involved.
4 Kinds of probable cause enumerated in Sen Jinggoy Estrada v.
Ombudsman (2015)
Secs 1 and 3 of R 112 – probable cause determined during a
preliminary investigation to support the filing of an information
in court;
Secs. 6 & 9 R 112 – by the judge after an information is filed to
support the issuance of a warrant of arrest or a commitment
order is already previously arrested thru a valid warrantless
arrest;
Sec. 5(b) R 113 – When effecting an a hot pursuit arrest
because the rule states as requisites that an offense has just been
committed and the arresting officer has probable cause to
believe based on personal knowledge of facts or circumstances
that the person to be arrested committed it.
Sec. 4 R 126 for issuance of a search warrant
Where information is amended; need of another preliminary investigation
depends on kind (formal or substantial) of amendment
TEEHANKEE JR. vs. MADAYAG, March 6, 1992
FACTS: Here, Claudio Teehankee, Jr. was originally charged for the
crime of frustrated murder for shooting Hultman who was comatose for
many months. In the course of the trial, Hultman died. The prosecution
sought to change the information from frustrated murder to consummated
murder. Teehankee Jr. questioned the new charge for lack of preliminary
investigation thereon .
ISSUE #1: Was there an amendment of the information or substitution
when the information was changed from frustrated murder to
consummated murder?
HELD: There is an amendment. “There is an identity of offenses charged
in both the original and the amended information [murder pa rin!]. What
is involved here is not a variance of the nature of or different offenses
charged, but only a change in the stage of execution of the same offense
from frustrated to consummated murder. This being the case, we hold
that an amendment of the original information will suffice and,
consequent thereto, the filing of the amended information for murder is
proper.”
ISSUE #2: What kind of amendment? Formal or substantial?
HELD: Formal. “An objective appraisal of the amended information for
murder filed against herein petitioner will readily show that the nature of
the offense originally charged was not actually changed. Instead, an
additional allegation, that is, the supervening fact of the death of the
victim was merely supplied to aid the trial court in determining the
proper penalty for the crime [So it is still murder.]. That the accused
committed a felonious act with intent to kill the victim continues to be
the prosecution's theory. There is no question that whatever defense
herein petitioner may adduce under the original information for frustrated
murder equally applies to the amended information for murder.”
So you are not prejudiced because the same defense available to you
then, for example alibi, is still available to you now.
ISSUE #3: Is there a need of a preliminary investigation on the new
charge?
HELD: No need because you have not changed the crime. If you change
the crime or when there is substitution, then preliminary investigation is
required. Since it is only a formal amendment, preliminary
investigation is unnecessary. “The amended information could not
conceivably have come as a surprise to petitioner for the simple and
obvious reason that it charges essentially the same offense as that
charged under the original information. Furthermore, as we have
heretofore held, if the crime originally charged is related to the amended
charge such that an inquiry into one would elicit substantially the same
facts that an inquiry into the other would reveal, a new preliminary
investigation is not necessary.”
Villaflor v. Vivar, 349 SCRA 194, January 16, 2001
Facts:
Accused was charged with slight physical injuries. Despite the
fact that based on the imposable penalty no preliminary investigation
was required, the prosecutor conducted one. When the injuries
sustained by the offended party turned out to be more serious than
they had first appeared, the information was amended to the charge
of serious physical injuries. Considering the imposable penalty, the
later offense required a preliminary investigation but the prosecutor
did not conduct any.
Issue:
Should a preliminary investigation be conducted?
Held:
No. The filing of the Amended Information, without a new
preliminary investigation, did not violate the right of accused to be
protected from a hasty, malicious and oppressive prosecution; an
open and public accusation of a crime; or from the trouble, the
expenses and anxiety of a public trial. The amended information
could not have come as a surprise to him for the simple and obvious
reason that it charged essentially the same offense as that under the
original Information. Moreover, if the original charge was related to
the amended one, such that an inquiry would elicit substantially the
same facts, then a new preliminary was not necessary.
No double jeopardy in preliminary investigation because there is no
judgment on the meritsBy reason of the abbreviated nature of preliminary investigation, a dismissal
of the charges as a result thereof is not equivalent to a judicial
pronouncement of acquittal, a converso, the finding of a prima case to hold
the accused for trial is not equivalent to a finding of guilt. (Metrobank vs.
Tonda, 338 SCRA 254, 270 [2000]. Hence, it does not place in jeopardy the
person against whom it is taken. (People vs. Deang, 338 SCRA 657, 672
[2000]
Rights of respondents
Presence of counsel not a right because it is merely a statutory not
constitutional right-
People v. Narca, 275 SCRA 696, July 21, 1997
Issue:
May a preliminary investigation be validly conducted without
respondent being assisted by counsel?
Held:
Yes. There is nothing in the Rules which renders invalid a preliminary
investigation held without respondent’s counsel. Not being part of the due
process clause but a right merely created by law, preliminary investigation
if held within the statutory limitations cannot be voided. The argument, if
sustained, would make a mockery of criminal procedure, since all that a
party has to do to thwart the validity of the preliminary investigation is for
their counsel not to attend the investigation. Preliminary investigation is
not the venue for the full exercise of the rights of the parties. This is why
preliminary investigation is not considered as a part of trial but merely
preparatory thereto and that the records therein shall not form part of the
records of the case in court. Parties may submit affidavits but have no right
to examine witnesses though they can propound questions through the
investigating officer. In fact, a preliminary investigation may even be
conducted ex-parte in certain cases.
Use of modes of discovery
Webb v. De Leon, 247 SCRA 652, August 23, 1995
Question:
May respondent in a preliminary investigation avail of discovery
proceedings?
Answer:
The Rules on Criminal procedure does not expressly provide for
discovery proceedings during the preliminary investigation stage of
criminal proceeding. This failure to provide discovery procedure during
preliminary investigation does not, however, negate its use by a person
under investigation when indispensable to protect his constitutional right
to life, liberty and property. Preliminary investigation is not too early a
stage to guard against any significant erosion of the constitutional right to
due process of a potential accused. The object of a preliminary
investigation is to determine the probability that the suspect committed a
crime. The finding of a probable cause by itself subjects the suspect’s life,
liberty and property to real risk of loss or diminution.
Respondent has no right to cross-examine the witnesses which the
complainant may presentSection 3, Rule 112 of the Rules expressly provides that the respondent
shall only have the right
(1)to submit a counter-affidavit,
(2)to examine all other evidence submitted by the complainant and,
(3)where the fiscal sets a hearing to propound clarificatory questions to the
parties or their witnesses, to be afforded an opportunity to be present but
without the right to cross-examine.
Xxx A preliminary investigation is not a part of a trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the
right to confront and cross-examine his accusers to establish his innocence.
Thus, the rights of a respondent in a preliminary investigation are limited to
those granted by procedural law. X x x
A person under preliminary investigation, as Senator Estrada is in the
present case when he filed his Request, is not yet an accused person, and
hence cannot demand the full exercise of his rights as an accused the right
to a preliminary investigation is a statutory, not constitutional. In short, the
rights of a respondent in a preliminary investigation are merely statutory
rights, not constitutional due process rights. X x x
A preliminary investigation may be done away with entirely (thru
legislation) without infringing the constitutional right of an accused under
the due process clause to a fair trial (Sen. Estrada v. Ombudsman).
Effect of lack of preliminary investigation; not jurisdictional; does not
impair the validity of the information; not a ground to quash-
Villaflor v. Vivar, 349 SCRA 194, January 16, 2001
Question:
What is the effect of the absence of a preliminary investigation?
Answer:
The absence of a preliminary investigation does not impair the
validity of the information or otherwise render it defective. Neither does it
affect the jurisdiction of the court or constitute a ground for quashing the
information. The trial court, instead of dismissing the information, should
hold in abeyance the proceedings and order the public prosecutor to
conduct a preliminary investigation.
When to object to lack of preliminary investigation- before entry of plea
Romualdez v. Sandiganbayan, 385 SCRA 436, July 30, 2002
Question:
When must the objection to lack of preliminary investigation be
raised?
Answer:
Any objection to lack of preliminary investigation must be made
before entry of the plea (People vs. Monteverde, July 11, 1986) and the
court, instead of dismissing the information, must remand the case for
preliminary investigation (Sanciangco vs. People, Mar. 24, 1987).
The refusal of the court to remand the case for preliminary investigation
can be controlled by certiorari and prohibition to prevent trial (Bandiala
vs. CFI, Sep. 30, 1970).
Right to a preliminary investigation; waivable
The right to a preliminary investigation may be waived for failure to invoke
the right prior to or at the time of the plea (People vs. Gomez, 117 SCRA 73;
People vs. Bulusan, 160 SCRA 492; Go vs. Court of Appeals, 206 SCRA 138)
Waiver of preliminary investigation/ The new rules does not require as
a condition sine qua non to the validity of the proceedings [in the
preliminary investigation] the presence of the respondent for as long as
efforts to reach him were made, and an opportunity to controvert the
evidence of the complainant is accorded him (Romuladez v.
Sandiganbayan [2010]).
Preliminary Investigation distinct from Inquest Proceedings
A preliminary investigation is a proceeding distinct from an inquest. A
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. An inquest is a summary inquiry conducted by a prosecutor for
the purpose of determining whether the warrantless arrest of a person was
based on probable cause. (Enriquez vs. Olegario R. Sarmiento, Jr. AM No.
RTJ-06-2011, Aug. 7,2006)
Preliminary Investigation distinguished from custodial investigation
Preliminary investigation is an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty thereof, and should be
held for trial. (Sec. 1, Rule 112; Ladiana vs. People, 393 SCRA 419, 431
[2002]. Custodial investigation is the questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way (ibid)
Relation of Preliminary Investigation to the institution of criminal
actions
Sec. 1, Rule 110 States:
“Criminal actions shall be instituted as follows:
For offenses where a preliminary investigation is required pursuant to
section 1 of Rule 112, by filing the complaint with the proper
officer for the purpose of conducting the requisite preliminary
investigation.
For all other offenses,
(1) by filing the complaint or information directly with the
Municipal Trial Courts, Municipal Circuit Trial Courts, or
(2) the complaint with the office of the prosecutor.
(3) In Manila and other chartered cities, the complaint shall be filed
with the office of the prosecutor unless otherwise provided in their
charters.
The institution of the criminal action shall interrupt the period of
prescription of the offense charged unless otherwise provided in
special laws.”
Procedure for cases not requiring a preliminary investigation
Where a preliminary investigation is not required because the penalty
prescribed for offense involved is less than four (4) years two (2) months
and one (1) day, two ways of initiating the action are prescribed, namely:
1. By filing the complaint directly with the prosecutor; or
2. By filing the complaint of information directly with the first level
court;
3. except in Manila or other chartered cities where the complaint should
be filed with the prosecutor’s office unless otherwise provided by
their charters (Sec. 8, Rule 112).
SEC. 2. Officers authorized to conduct preliminary investigations.
Authority to conduct Preliminary Investigation
1. Who may conduct PI:
1. Provincial or City Prosecutors and their assistants
2. National and Regional State Prosecutors
3. Other officers as may be authorized by law
2. Extent of their authority to conduct PI:
It shall extend to all crimes cognizable by the proper court in their
respective territorial jurisdictions (A.M. 05-06-26, SC, August 30,
2005 but effective October 3, 2005)
“Other officers authorized to conduct”
COMELEC
1. RA 9369 which took effect on January 23, 2007, introduced an
amendment to the Omnibus Election Code pursuant to which the
Comelec, through its duly authorized legal officers, has the
power, concurrent with the other prosecuting arms of the
government, to conduct preliminary investigation of all
election offenses punishable under the Omnibus Election
Code and to prosecute the same (Sec. 265, BP 881, Omnibus
Election Code, as amended by RA 9369, Sec. 43).
Ombudsman and his deputies
2. The Ombudsman and his deputies are, within legal
contemplation, other officers authorized by law to conduct
preliminary investigation. (Velasco vs. Casaclang, 294 SCRA
394, 403 [1998])
The Office of the Ombudsman has the powers, functions and
duties, to investigate 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, improper or inefficient.
It has primary jurisdiction over cases cognizable by the
Sandiganbayan and in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of the government, the investigation of
such cases (Section 13(1), Art. XI, Constitution and Sec. 15,
par. 1, RA 6770)
The investigators of the Ombudsman have concurrent
jurisdiction with public prosecutors to conduct preliminary
investigations in all cases involving public officers, whether
falling under the jurisdiction of the Sandiganbayan or the
regular courts. (Gozos vs. Tac-an 300 SCRA 265, 274-275
[1998]; see also Office of the Ombudsman vs. Breva, GR
145938, Feb. 10, 2006; Uy vs. Sandiganbayan GR 105965-70,
Mar. 20, 2001).
Ombudsman
Theron V. Lacson v. The Hon. Executive Secretary, et al/Jaime
R. Millan and Bernardo T. Viray v. The Hon. Executive
Secretary, et al, G.R. No. 165399 & 165475/G.R. No. 165404
& 165489, May 30, 2011
The Ombudsman has concurrent jurisdiction with similarly
authorized agencies. In this case, the Supreme Court debunked
petitioners’ argument that because they are not presidential
appointees, it is only the Ombudsman which has jurisdiction
over them. The Supreme Court ruled that the power of the
Ombudsman to investigate offenses involving public officials is
not exclusive, but is concurrent with other similarly authorized
agencies of the government in relation to the offense charged.
Therefore, with respect to petitioners, the Ombudsman may share its
authority to conduct an investigation concerning administrative
charges against them with other agencies.
Courts cannot interfere with the discretion of the Ombudsman to
determine probable cause/ Reason thereofThis rule is based not only, on respect for the investigatory and
prosecutor powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. If it were otherwise, the
functions of the Court will be seriously hampered by innumerable
petitions assailing the dismissal of investigatory proceedings
conducted by the Office of the Ombudsman with regards to
complaints filed before it, in much the same way that the courts would
be extremely swamped with cases if they could be compelled to
review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in
court or dismiss a complaint by a private complainant (People v.
Borje [2014]).
DOJ provincial or city prosecutors
Uy v. Sandiganbayan, 354 SCRA 651, March 20, 2001
Question:
What is the extent of the authority of the Ombudsman in conducting
preliminary investigation?
Answer:The Ombudsman is clothed the authority to conduct
preliminary investigation and to prosecute all criminal cases
involving public officers and employees, not only those within the
jurisdiction of the Sandiganbayan, but also those of the regular
courts. This is founded in Sec. 15 and 11 of RA 6770 which vests the
Ombudsman with the power to investigate and prosecute 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
ineffient.
Authority over Sandiganbayan cases
Honasan II v. Panel of Prosecutors, DOJ, 427 SCRA 46, April 13, 2004
Question:
Do city and provincial prosecutors (DOJ) have the authority to
conduct preliminary investigation of crimes committed within their
jurisdiction when such offenses are cognizable by the Sandiganbayan?
Answer:
Yes. Sec. 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure, which list the officers authorized to conduct preliminary
investigation states that “their authority to conduct preliminary
investigation shall include all crimes cognizable by the proper court in their
respective territorial jurisdictions.” However, under Sec. 4, in offenses
falling within the original jurisdiction of the Sandiganbayan, the prosecutors
shall, after their investigation, transmit the records and their resolutions to
the Ombudsman or his deputy for appropriate action. Also, the prosecutor
cannot dismiss the complaint without the prior written authority of the
Ombudsman or his deputy, nor can the prosecutor file an Information with
the Sandiganbayan without being deputized by, and without prior written
authority of the Ombudsman or his deputy.
b. Deputation by Ombudsman not needed
Honasan II v. Panel of Prosecutors, DOJ, 427 SCRA 46, April 13, 200
Facts:
OMB-DOJ JOINT CIRCULAR NO. 95-001, Series of 1995, states: “1.
Preliminary Investigations and prosecution of offenses committed by public
officers and employees IN RELATION TO OFFICE whether cognizable by
Sandiganbayan or the Regular Courts, and whether filed with the Office of
the Ombudsman or with the Office of the Province/City Prosecutor shall be
under the control and supervision of the office of the OMBUDSMAN.”
Issue:
Should prosecutors of the Department of Justice be deputized by the
ombudsman before they can validly conduct preliminary investigation over
offenses committed by public officials in relation to office which are
cognizable by ordinary courts?
Held:
No. The Constitution, Ombudsman Act of 1989, OMB Administrative
Order No. 8, prevailing jurisprudence, and the Rules on Criminal Procedure,
all recognize and uphold the concurrent jurisdiction of the ombudsman
and the DOJ to conduct preliminary investigation on charges filed against
public officers and employees. The power to conduct preliminary
investigation on charges against any public officers and employees may be
exercised by any provincial or city prosecutor or their assistants, either in
their regular capacities or as deputized Ombudsman prosecutors. That fact
that all prosecutors are in effect deputized Ombudsman prosecutors
under the OMB-DOJ circular is a mere superfluity. DOJ prosecutors need
not be authorized by the Ombudsman to conduct the preliminary
investigations for complaints filed with it because the DOJ’s has the
authority to act as the principal law agency of the government and
investigate the commission of crimes. Thus, there is not even a need to
delegate the conduct of the preliminary investigation to an agency which
has the jurisdiction to do so in first place.
Authority of the Special Prosecutor
Uy v. Sandiganbayan, 354 SCRA 651, March 20, 2001
Question:
What is the extent of authority of the Special Prosecutor in conducting
preliminary investigation?
Answer:
The Office of the Special Prosecutor is merely a component of the Office of
the Ombudsman and may only act under the supervision and control and
upon authority of the Ombudsman. Its power to conduct preliminary
investigation and to prosecute is limited to criminal cases within the
jurisdiction of the Sandiganbayan.
The Deputy Ombudsman for the Military has the authority to
investigate the civilian personnel of the government such as the
members of the PNP. (ibid)
It may utilize the personnel of his office and/or designate or deputize any
fiscal, state prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and prosecution of
certain cases (see Agbay vs. Deputy Ombudsman for the Military, 309
SCRA 726, 734 [1999]).
For criminal cases falling within the jurisdiction of the Sandiganbayan,
it is the Office of the Special Prosecutor, as an organized component of the
Office of the Ombudsman, which exercises investigatory and
prosecutorial powers. (Sistoza vs. Desierto, 388 SCRA 307, 323 [2002])
4.DOJ Special Counsels
Special counsels designated by the Secretary of Justice, under Sec. 1686 of
the Revised Administrative Code, as amended, have the authority to conduct
preliminary investigation. (People vs. Garfin GR 153176 March 29, 2004) or
panel of investigating prosecutors of the DOJ (Honasan vs. Panel, supra)
5. The Presidential Commission on Good Government (PCGG) with the
assistance of the Office of the Solicitor General and other government
agencies is empowered to investigate, file and prosecute cases investigated
by it (Sec. 1, Executive Order No. 14, May 7, 1986).
SEC. 3. Procedure.
There are 3 parties involved in a preliminary investigation namely:
(a)
(b)
(c)
the complainant;
the investigating officer and
the respondent.
Procedure as to the Complainant
1. He/she shall file the complaint with the office of the prosecutor,
2. The complaint shall:
1. state the address of the respondent,
2. be accompanied by:
1. affidavits [subscribed, sworn to and certified] of the
complainant and his witness, and
2. other supporting documents to establish probable cause;
3. Number of copies for the complainant:
1. as many as there are respondents, plus
2. two [2] copies for the official file
Procedure as to the Investigating Officer
1. He/she has ten (10) days after the filing of the complainant, either to:
1. Dismiss it – if he finds no ground to continue with the
investigation, or
2. Issue a subpoena to the respondent, attaching to the subpoena:
1. a copy of the complaint, and
2. its supporting affidavits and documents
2. He/she shall resolve the complaint based on the evidence presented by
the complainant (or ex-parte), if the respondent:
1. cannot be subpoenaed, or
2. is subpoenaed, but does not submit counter-affidavits within the
ten (10) day period;
3. He/she may set a hearing if there are facts and issues to be clarified
from a party or a witness.
1. The parties [complainant and respondent]
1. can be present at the hearing,
2. have no right to examine or cross-examine, but
3. may submit to the investigating officer questions which may
be asked to the party or witness concerned.
2. The hearing shall be:
1. held within ten (10) days:
1. from submission of the counter-affidavits and other
documents, or
2. from the expiration of the period of their submission
2. terminated within five (5) days
4. Within Ten (10) days after the investigation, he/she shall determine
whether or not there is sufficient ground to hold the respondent for trial
Procedure as to Respondent
1. With respect to the documentary evidence submitted by the
complainant, he/she shall have the right to:
1. examine the evidence which he may not have been furnished,
2. to copy them at his expense, and
3. to require the complainant to specify those which he intends to
present against the respondent, if the evidence is voluminous
2. With respect to object evidence:
1. they need not to be furnished to the respondent, but
2. they shall be made available for examination, copying, or
photographing at his/her expense
3. Within 10 days from receipt of the subpoena with complaint and
supporting affidavits and documents, he/she shall submit:
1. counter-affidavits [subscribed and sworn to and certified] of
himself and that of his witnesses, and
2. other supporting documents relied upon for his/her defense
4. He/she shall not be allowed to file a motion to dismiss in lieu of a
counter-Affidavit
Commencement of the Preliminary investigationIt is the filing of the complaint with the investigating prosecutor that starts
the preliminary investigation process. In actual application, the complaint is
normally initiated through an affidavit of complaint.
Complaint to institute a criminal prosecution v. complaint to commence a
preliminary investigationNote that the complaint filed for the purpose of preliminary investigation
differs from the complaint filed for the purpose of instituting a criminal
prosecution. The latter refers to the complaint defined in Sec. 3 of Rule
110 and which is in the name of the People of the Philippines.
It has also been held that the complaint referred to in a preliminary
investigation is not just the affidavit of the complainant because his
affidavit is treated as a component of the complaint. (See Santos-Cancio
vs. DOJ, 543 SCRA 70).
Necesssity of complainant’s affidavit
It is mandatory requirement for the complainant to submit his affidavit
and those of his witnesses before the respondent can be compelled to
submit his counter-affidavits and other supporting documents. (Duterte
vs. Sandiganbayan, supra, citing Olivas vs. Office of the Ombudsman, 239
SCRA 283 [1994]).
The complaint and affidavits must be under oath; persons who can
administer the oathThe Rules require that for purposes of preliminary investigation, the
complaint and its accompanying affidavits and supporting documents be
‘sworn to’ before
(1) any fiscal (now prosecutor), state prosecutor or
(2)government official authorized to administer oath, or
(3) in their absence or unavailability, a notary public who must certify
that he personally examined the affiants and he is satisfied that they
voluntarily executed and understood their affidavits. This requirement is
mandatory. (Oporto, Jr. vs. Monserate, 256 SCRA 443 [2001].
Affidavits notarized by a notary public without any showing that a
prosecutor or qualified government official was unavailable are not in
accord with the rules. (Ladlad vs. Senior State Prosecutor Velasco, GR
172070-72, June 1, 2007)
Note the steps: the investigating officer follows upon filing of the
complainta)Determination of whether or not there is ground to continue;
b)Issuance of subpoena
In graft cases, the Ombudsman does not necessarily have to
conduct a preliminary investigation upon receipt of a complaint.
Should the investigating officer find the complaint utterly devoid
of merit, then he may recommend its outright dismissal. Moreover,
it is also within his discretion to determine whether or not a
preliminary investigation should be conducted. (Knecht vs.
Desierto, 291 SCRA 292, 298-300 [1998])
Filing of Counter-affidavit is required not a commentIn the preliminary investigation, what the respondent is required to file is a
counter-affidavit, not a comment. It is only when the respondent fails to file
counter-affidavit may the investigating officer consider the respondent’s
comment as the answer to the complaint. (Duterte vs. Sandiganbayan, supra)
Counter-affidavit filed late not allowed and consideredThe case of Espiritu vs. Jovellanos, 280 SCRA 579 [1997] established the
principle that respondent’s counter-affidavit filed late should not be
allowed and considered in resolving the case for preliminary
investigation.
Ex-parte resolution, when allowed(1)if the respondent cannot be subpoenaed, or
(2)if subpoenaed, does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant. (Sec. 3(d))
Preliminary investigation; no vested right to file a reply.
There is no provision in Rule 112 of the Rules of Court that gives the
Complainant or requires the prosecutor to observe the right to file a Reply to
the accused’s counter-affidavit. To illustrate the non-mandatory nature of
filing a Reply in preliminary investigations, Section 3 (d) of Rule 112 gives
the prosecutor, in certain instances, the right to resolve the Complaint even
without a counter-affidavit, viz: “(d) If the respondent cannot be subpoenaed,
of if subpoenaed, does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.” On the other hand, petitioner was
entitled to receive a copy of the Counter-affidavit filed by Aguillon. P/Insp.
Ariel S. Artillero v. Orlando C. Casimiro, etc., et al, G.R. No. 190569, April
25, 2012.
Preliminary investigation; non-receipt of counter-affidavit cured by
complainant’s filing of MR of the resolution.
The procedural defect of not having received a copy of the Counteraffidavit, however, was cured when petitioner filed a Motion for
Reconsideration.
Provincial Prosecutor Dusaban had the duty to send petitioner a copy of
Aguillon’s Counter-affidavit. Section 3(c), Rule 112 of the Revised Rules on
Criminal Procedure, grants a complainant this right, and the Provincial
Prosecutor has the duty to observe the fundamental and essential
requirements of due process in the cases presented before it. That the
requirements of due process are deemed complied with in the present case
because of the filing of an MR by Complainant was simply a fortunate turn
of events for the Office of the Provincial Prosecutor. P/Insp. Ariel S.
Artillero v. Orlando C. Casimiro, etc., et al, G.R. No. 190569, April 25,
2012.
Motion to Dismiss not allowed
The Rules disallow the filing of a motion to dismiss in lieu of counteraffidavit except when grounded on lack of jurisdiction. In case a motion to
dismiss is filed, it should be denied and the case should be resolved on the
sole basis of the complainant’s evidence. (Romualdez vs. Marcelo, GR
165510-33, Sept. 23, 2005; Velasco vs. Casaclang, 335 Phil. 815, 833
[1998])
Clarificatory hearing discretionary
The investigating officer has the right to set a hearing for clarificatory
questions. The decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator and the investigator
alone. If the evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing. (Tuliao vs. Ramos, 284
SCRA 378, 386-387 [1998]; Webb vs. De Leon, supra). A clarificatory
hearing is not indispensable during preliminary investigation. Rather than
being mandatory, a clarificatory hearing is optional on the part of the
investigating officer. As such, the absence of a clarificatory hearing is not a
denial of due process (De Ocampo vs. Sec. Of Justice GR 147932, Jan. 25,
2006; Racho v. Miro, 567 SCRA213; Sierra v. Lopez, Admin. Case No.
7549, Aug. 28, 2009).
Presence of the accused in the clarificatory hearingThe new rules do not require as condition sine qua non to the validity of
the proceedings (in the preliminary investigation) the presence of the
accused (respondent) for as long as efforts to reach him were made, and
an opportunity to controvert the evidence of the complainant is
accorded him. The obvious purpose of the rule is to block attempts of
unscrupulous respondents to thwart the prosecution of offenses by hiding
themselves or by employing dilatory tactics (Rodis vs. Sandiganbayan, 166
SCRA 618, 623 [1988] cited in Tuliao vs. Ramos, infra). The fact that the
accused excaped will not excuse the investigating judge from his duty to
end the preliminary investigation as soon as possible. (Tuliao vs. Ramos)
Thus, where the purpose of the clarificatory hearing is only to re-examine
the testimony of the complainant’s witnesses, the presence of the accused is
not needed to conduct the hearing. (ibid)
Periods for disposing preliminary investigation cases- within a period of
sixty (60) days from the date of assignment. This period shall include
hearings conducted, and preparation and issuance of resolutions and
corresponding informations, if any.
Resolutions submitted to the head of the office for approval shall be
acted within ten (10) days from submission. (DOJ Circular No. 01-2000)
Effect of non-compliance with the periods-
However, non-compliance with these periods does not affect the validity of
the resolution and/or information. The offending officer may, however,
be subjected to disciplinary action in the absence of a justifiable
explanation. (ibid)
TATAD vs. SANDIGANBAYAN, 159 SCRA 70, March 21, 1988
FACTS:
The preliminary investigation lasted for 3 years. So Tatad questioned the
information.
ISSUE #1: Is the 10-day period to issue a resolution mandatory or
directory?
HELD: “The 10-day period fixed by law is merely “directory,”
yet, on the other hand, it can not be disregarded or ignored
completely, with absolute impunity. It certainly can not be
assumed that the law has included a provision that is deliberately
intended to become meaningless and to be treated as a dead letter.”
So all of the information filed must be dismissed for violation of
the right for speedy trial.
ISSUE #2: The government contended that a total lack of preliminary
investigation is not a ground for dismissing an information, how come
the delay in terminating a preliminary investigation becomes now a
ground for dismissal?
HELD: “It has been suggested that the long delay in
terminating the preliminary investigation should not be deemed
fatal, for even the complete absence of a preliminary investigation
does not warrant dismissal of the information. True — but the
absence of a preliminary investigation can be corrected by giving
the accused such investigation. But an undue delay in the conduct
of a preliminary investigation can not be corrected, for until now,
man has not yet invented a device for setting back time.”
SANTIAGO vs. GARCHITORENA, December 2, 1993
FACTS:
Anti-graft charges were filed against Miriam Defensor-Santiago when
she was still the Immigration Commissioner. Santiago raised this issue
(on delay) because the offense was allegedly committed on or about
October 17, 1988 and the information was filed only on May 9, 1991 or
almost 3 years later. The amended information was filed only on
December 8, 1992 or 4 years later. So following the Tatad ruling they
ought to be dismissed.
HELD: “[Santiago] cannot complain that her constitutional rights to due
process were violated by reason of the delay in the termination of the
preliminary investigation. Tatad v. Sandiganbayan, 159 SCRA 70 [1988]
is inapplicable to petitioner's case. In Tatad, there indeed was an
unexplained inaction on the part of the public prosecutors despite the
simplicity of the legal and factual issues involved therein. In the case at
bench, there was a continuum of the investigatory process but it got
snarled because of the complexity of the issues involved. “
“We note that [Santiago] had previously filed two petitions
before us involving 2 criminal cases. Petitioner has not explained
why she failed to raise the issue of the delay in the preliminary
investigation and the filing of the information against her in those
petitions. A piece-meal presentation of issues, like the splitting of
causes of action, is self-defeating.” So it is like splitting your
causes of action working against you.”
SOCRATES vs. SANDIGANBAYAN, 253 SCRA 773, February 20, 1996
Socrates was a governor of Palawan and also facing cases in the
Sandiganbayan where he invoked the Tatad ruling.
HELD: “In the application of the constitutional guaranty of the right to
speedy disposition of cases, particular regard must also be taken of the
facts and circumstances peculiar to each case. It is palpably clear that the
application of the Tatad doctrine should not be made to rely solely on the
length of time that has passed but equal concern should likewise be
accorded to the factual ambiance and considerations. It can easily be
deduced from a complete reading of the adjudicatory discourse in Tatad
that the three-year delay was specifically considered vis-a-vis all the facts
and circumstances which obtained therein.”
So you just don’t consider the time element. You must also consider the
facts.
SERVANTES vs. SANDIGANBAYAN, 307 SCRA 149, May 18, 1999
FACTS:
Here, Elpidio Servantes was charged for violation of Section 3(e) of the
Anti-Graft law. It took the special prosecutor six (6) years from the filing
of the initiatory complaint before he decided to file an information for the
offense in the Sandiganbayan. Servantes filed a motion to quash for
violation of the right to speedy disposition of the case. Special prosecutor
tried to justify the delay in the resolution of the complaint by stating that
no political motivation appears in the prosecution of the case in apparent
reference to the case of Tatad because in the said case there was political
motivation behind the delay.
Special Prosecutor: “Servantes here was insensitive to the implications
and contingencies thereof by not taking any step whatsoever to accelerate
the disposition of the matter.” So you are estopped.
HELD:
“We find Servantes’ contention meritorious. He was deprived of his right
to speedy disposition of the case, a right guaranteed by the Constitution.
We cannot accept special prosecutor’s ratiocination. It is the duty of the
prosecutor to speedily resolve the complaint as mandated by the
Constitution regardless of whether Servantes did not object to the delay
although the delay was with his acquiescence provided it was not due to
causes directly attributable to him.” So the mere fact that he was not
complaining is not a factor. What is the factor is when the delay was
caused by him.
Let’s go back to paragraph [b]:
There is no mention that after the counter-affidavit, the complainant can also
file a reply-affidavit. There is nothing which says that it cannot be done,
there is nothing which says that it can be done. Well, my position is, since it
is not prohibited, try it.
Q: Going back to paragraph (b) when the respondent is subpoenaed, he is
supposed to file his counter-affidavit. But if he cannot be served a subpoena
or even if subpoenaed he does not submit his counter-affidavit?
A: The investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
Exception to the 60 day period from filing to terminate the entire
proceedings; where shorter period is mandatedThe preliminary investigation of cases filed under the Comprehensive
Drugs Act of 2002 shall be terminated within a period of thirty (30) days
from the date of their filing. (Sec. 90 RA 9165)
When jurisdiction of the investigating officer ends and the jurisdiction
of the court begins or when preliminary investigation is terminated and
criminal action is “commenced”
“Commenced”(differentiated from the word “instituted” which is
important to determine whether the action has prescribed or not) is
important to determine the start of judicial jurisdiction.
The preliminary investigation is terminated upon the filing of the
information in the proper court. In turn, the filing of said information
sets in motion the criminal action against the accused in Court. While it
is true that the fiscal has the quasi-judicial discretion to determine whether
or not a criminal case should be filed in court, once the case had already
been brought to court, whatever disposition the fiscal may feel should be
proper in the case thereafter should be addressed for the consideration
of the court.
The only qualification is that the action of the Court must not impair
the substantial rights of the accused, or the right of the People to due
process of law. (Advincula vs. CA 343 SCRA 583, 591 [2000] citing
Crespo vs.Mogul 151 SCRA 462 [1987]).
Reinvestigation when proper
A reinvestigation is proper only if the accused’s substantial rights would be
impaired. (Antiporda, Jr. vs. Garchitorena, 321 SCRA 551, 561 [1999]).
When the trial court orders a reinvesitigation of the case, it must wait for the
prosecutor to report on the result of such reinvestigation. That is a matter of
duty on its part, not only to be consistent with its order but also to do justice
and at the same time to avoid a possible miscarriage of justice. (People vs.
Beriales 70 SCRA 361, 365-366 [1976])
When reinvestigation not proper
1. But where no less than the Supreme Court has sustained the finding of
a probable cause against the accused, the lower court should not give due
course to the motion for reinvestigation, nor should a reinvestigation be
condicted. (Pilapil vs. Sandiganbayan, 299 SCRA 343 [1998]).
2. So too, when the resolution of the investigating prosecutor was
reviewed by the Secretary of Justice, it is grossly erroneous for respondent
judge to order the reinvestigation of the case by the prosecutor. This action
would enable the latter to reprobate and reverse the secretary’s resolution. In
granting the Motion for Reinvestigation, respondent effectively demolished
the DOJ’s power of control and supervision over prosecutors. (Community
Rural Bank of Guimba (NE), Inc. vs. Judge Talavera, AM No. RTJ -051909, April 6, 2005)
SEC. 4. Resolution of investigating prosecutor and its review. –
Resolution of Investigation Prosecutor
1. If the investing prosecutor finds cause to hold respondent for trial:
1. He shall prepare the resolution and information;
2. He shall certify under oath in the information that:
1. he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses;
2. there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
3. the accused was informed of the complaint and of the
evidence submitted against him, and
4. the accused was given an opportunity to submit
controverting evidence; and
3. He shall forward the record of the case, within five (5) day from his
resolution, to his superior who may either be the:
1. Provincial or City Prosecutor, or
2. Chief State Prosecutor, or
3. Ombudsman or his deputy in cases of offenses cognizable
by the SB in the exercise of its original jurisdiction.
2. If the investigating prosecutor finds NO cause to hold the respondent
for trial:
1. He shall recommend the dismissal of the complaint; and
2. He shall forward the record of the case, within five (5) days from
his resolution, to his superior may either be the:
1. Provincial or City Prosecutor, or
2. chief state prosecutor, or
3. Ombudsman or his deputy in cases of offenses cognizable
by the Sandiganbayan in the exercise of its original jurisdiction
Review of the Resolution of the Investigating Prosecutor
1. No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or the approval
of the :
1. provincial or city prosecutor, or
2. chief state prosecutor, or
3. the Ombudsman or his deputy
2. Duty of the superior reviewing the resolution:
1. He/she shall act on the resolution within 10 days from receipt
thereof, by either:
1. approving it, or
2. disapproving it, and
2. He/she shall immediately inform the parties of such action
Approval or Disapproval of recommendation made by the Investigating
Prosecutor
1. If the recommendation for DISMISSAL is DISAPPROVED by the superior
on the ground that probable cause exists:
1. The superior may, by himself, file the information against the
respond, or direct another assistant prosecutor or state prosecutor to do
so, and
2. There is no need for conducting another preliminary investigation
2. The Secretary of Justice may reverse or modify the resolution of the
superior of the investigating prosecutor:
1. Upon a verified petition for review by a proper party under such
rules as the DOJ may prescribe, or
2. Motu propio
3. What the Secretary of Justice may do when he reverse or modify said
resolution – he directs the prosecutor concerned either to:
1. FILE the corresponding information without conducting another
preliminary investigation, or
2. DISMISS or move for dismissal of the complaint or information
with notice to the parties
1. Resolution
a. Finding of probable cause is not equivalent to a finding of sufficiency of
evidence to prove guilt beyond reasonable doubt
b. Absence of Certification in the Information does not invalidate
information
Alviso v. Sandiganbayan, 220 SCRA 55, March 17, 1993
Issue:
Is an information without the certification by the prosecutor that he
conducted a preliminary investigation valid?
Held:
Yes. Notwithstanding the absence in the information of a
certification as to the holding of a preliminary investigation, the
information is nonetheless considered valid for the reason that such
certification is not an essential part of the information itself and its
absence cannot vitiate it as such.
What is not allowed is the filing of the information without a preliminary
investigation having been previously conducted (People v. Lapura, 255
SCRA 85).
Service of Resolutions in Preliminary Investigation can be done to party
himself or through his counselThe Rule on service of pleadings, motions and other papers provided for
in the Rules of Court cannot be made to apply to the service of resolutions
by public prosecutors, especially as the agency concerned, in this case the
DOJ, has its own procedural rules governing said service. In preliminary
investigation, service can be made upon the party himself or through his
counsel. (Tam Wing Tak Vs. Makasiar, 350 SCRA 475, 483-484 [2001]
Failure to furnish respondent copy of an adverse resolution
The failure to furnish the respondent with a copy of an adverse resolution
does not affect the validity of an information thereafter filed even if a copy
of the resolution upon which the information is based was not served upon
the respondent. (Pecho vs. Sandiganbayan, 238 SCRA 116 [1994]; Torralba
vs. Sandiganbayan 230 SCRA 33 [1994]). Hence, the failure of the
prosecution to furnish copy of the resolution in the preliminary
investigation to the respondent is not a ground to quash an information.
(Vasquez vs. Hobilla-Alino, 271 SCRA 67, 71-72 [1997]). So too, the
service of the resolution to the respondent, even if represented by
counsel, was not held invalid. (Hegerty vs. CA GR 154920, Aug. 15,
2003).
Authority of judge to dismiss an information; consent of prosecutor not
necessary
a. Case pending in court
Manlavi v. Gacott, Jr., 244 SCRA 50, May 9, 1995
Issue:
May a judge dismiss an information without the consent of the
provincial or city or chief state prosecutor?
Held:
Yes. Sec. 4, Rule 112 of the New Rules on Criminal Procedure, which
provides that no complaint or information may be filed or dismissed by an
investigating fiscal without the prior written approval of the provincial or
city fiscal or chief state prosecutor applies to the conduct of the preliminary
investigation, which is within the control of the public prosecutor. It has no
application in a case where the information is already filed before the
proper court. In fact the epigraph of Rule 112 is “Duty of investigating
fiscal.”
b. Authority to appeal dismissal of action involving an election offense
belongs to COMELEC (?)
COMELEC v. Silva, 286 SCRA 177, February 10, 1988
Issue:
In cases where a DOJ prosecutor has been deputized by the Comelec
to prosecute an election offense, who has authority to decide whether or
not to appeal from the order of dismissal issued by trial court, the
COMELEC or its designated prosecutor?
Held:
The authority to decide whether or not to appeal the dismissal
belongs to the COMELEC. Art. IX-C, §2(6) of the Constitution expressly
vests in it the power and function to “investigate, and where appropriate,
prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and , malpractices.” Prosecutors
designated by the COMELEC to prosecute the cases act as its deputies who
derive their authority from it and not from their offices. Consequently, it
was beyond the power of the DOJ prosecutor to oppose the appeal of the
COMELEC. If he thought there was no probable cause for proceeding, he
should have discussed the matter with the COMELEC and awaited its
instruction. If he disagreed with the COMELEC’s findings, he should have
sought permission to withdraw from the cases.
Review of Resolution during preliminary investigation lies with the Sec. Of
Justice
a. Nature of prosecution office not considered a quasi-judicial body so
review of resolution in preliminary investigation is administrative not
governed by Rule 43 of the Rules of Court
Filadams Pharma v. CA, 426 SCRA 460, March 30, 2004
Issue:
Is the Office of the Prosecution a quasi-judicial agency whose
resolutions are subject to review by the CA under Rule 43 of the 1997 Rules
of Civil Procedure?
Held:
No. A quasi-judicial body has been defined as “ an organ of
government other than a court and other than a legislature which affects
the rights of private parties through either adjudication or rule-making.”
On the other hand, the prosecutor in a preliminary investigation does not
determine the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is merely
inquisitorial, and is often the only means of discovering the persons who
may be reasonably charged with a crime and to enable the fiscal to prepare
his complaint or information. It is not a trial of the case on the merits and
has no purpose except that of determining whether a crime has been
committed an whether there is a probable cause to believe that the
accused is guilty thereof. Hence, the office of the prosecutor is not a quasijudicial body; necessarily, its decisions approving the filing of a criminal
complaint are not appealable to the CA under Rule 43.
Supervision and control over prosecutors during preliminary investigation
lies with the Secretary of Justice
Community Rural Bank v. Talavera, 455 SCRA 34, April 6, 2005
Question:
In the conduct of preliminary investigation, who exercises
supervision and control over city and provincial prosecutors?
Answer:
Sec. 39, Chapter 8, Book IV in relation to Sec. 5, 8, and 9, Chapter 2,
Title III of the Revised Administrative Code gives the Secretary of Justice
supervision and control over the office of the Chief Prosecutor and the
Provincial and City Prosecution Offices. The actions of prosecutors are not
unlimited; they are subject to review by Secretary of Justice who may
affirm, nullify, reverse or modify their actions or opinions. Consequently
the secretary may direct them to file either a motion to dismiss the case or
an information against the accused. In short, the Secretary of Justice is the
ultimate authority who decides which of the conflicting theories of the
complainants and the respondents should be believed.
Judicial Review of determination of probable cause not allowed except
for grave abuse of discretionCourts should give credence, in the absence of a clear showing of
arbitrariness, to the findings and determination of probable cause by
prosecutors in preliminary investigation. (Depasquier vs. CA, 350 SCRA
146, 153 [2001]. Thus, although it is entirely possible that the investigating
fiscal may erroneously exercise the discretion lodged in him by law, this
does not render his act amenable to correction and annulment by the
extraordinary remedy of certiorari absent any showing of grave abuse of
discretion amounting to excess of jurisdiction. (Hegerty vs. CA; DM
Consunji, Inc. vs. Esguerra, 328 SCRA 168, 180 [1996])
Remedy from prosecutor’s resolution - Appeal to the Secretary of
Justice; filing a petition for review
In cases subject of preliminary investigation or reinvestigation, an appeal
may be brought to the Secretary of Justice from the resolutions of the Chief
State Prosecutor, Regional State Prosecutors and Provincial/City Prosecutor
(Sec. 1, Dep’t Circular No. 70, NPS Rule on Appeal, Dep’t of Justice, July
3, 2000). The Secretary of Justice has the ultimate authority to decide which
of the conflicting theories of the complainants and the respondents should be
believed (Community Rural Bank of Guimba [N.E.}, Inc. v. Talavera 455
SCRA 34).
Note that the appeal to the Secretary of Justice does not hold or prevent
the filing of the corresponding information in court based on the finding
of probable cause in the appealed resolution, unless the Secretary of
Justice directs otherwise, but the appellant and prosecutor shall see to it that,
pending resolution of the appeal, the proceedings in court are held in
abeyance (Sec. 9 Dep’t Circular No. 70).
Note also that the party filing a petition for review is allowed to file a
motion for the suspension of the arraignment. Under Sec. 11 of Rule 116,
upon motion by the proper party, the arraignment shall be suspended, among
others, if a petition for review of the resolution of the prosecutor is pending.
Suspension of court proceedings pending appeal to the DOJ
Where the Secretary of Justice exercises his power of review only after
an information has been filed, trial courts should defer or suspend
arraignment and further proceedings until the appeal is resolved. Such
deferment or suspension, however, does not signify that the trial court is ipso
facto bound by the resolution of the secretary of justice. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution by the secretary of
justice to withdraw the information or dismiss the case. Ledesma vs. CA,
278 SCRA 656, 680 [1997])
In Marcelo vs. CA, 235 SCRA 39 [1994], the Supreme Court ruled that,
although it is more prudent to wait for a final resolution of a motion for
review or reinvestigation from the secretary of justice before acting on a
motion to dismiss or a motion to withdraw an information, a trial court
nonetheless should make its own study and evaluation of said motion and
not merely rely on the awaited action of the secretary. The trial court has the
option to grant or deny the motion to dismiss the case filed by the fiscal,
whether before or after the arraignment of the accused, and whether after a
reinvestigation or upon instructions by the secretary who reviewed the
records of the investigation; provided that such grant or denial is made from
its own assessment and evaluation of the merits of the motion.
In Martinez vs. CA, 237 SCRA 575 [1994], the high court overruled the
grant of the motion to dismiss filed by the prosecuting fiscal upon the
recommendation of the secretary of justice because, such grant was based
upon considerations other than the judge’s own assessment of the matter.
Relying solely on the conclusion of the prosecution to the effect that there
was no sufficient evidence against the accused to sustain the allegation in the
information, the trial judge did not perform his function of making an
independent evaluation or assessment of the merits of the case.
Judicial review of the resolution of the Secretary of Justice allowed only
thru certiorari under Rule 65 for grave abuse of discretion etc.,-
Judicial review of the resolution of the Secretary of Justice is limited
to a determination of whether there has been a grave abuse of discretion
amounting to lack or excesss of jurisdiction considering that the full
discretionary authority has been delegated to the executive branch in
the determination of probable cause during a preliminary investigation.
Courts are not empowered to substitute their judgment for that of the
executive branch. It may, however, look into the question of whether such
exercise has been made in grave abuse of discretion.(Metrobank vs. Tonda,
338 SCRA 254, 270-271 [2000]. Thus, as a general rule, the Supreme Court
does not interfere with the Ombudsman’s determination of the existence or
absence of probable cause except when there is grave abuse of discretion
(Sistoza vs. Desierto, 388 SCRA 307, 323 [2002]).
Remedy from resolution of DOJ Secretary of the the appeal- to file a
petition for certiorari with the CA under Rule 65
Under exceptional circumstances, a petition for certiorari assailing
the resolution of the Secretary of Justice (involving an appeal of the
prosecutor’s ruling on probable cause) may be allowed
notwithstanding the filing of an information with the trial court
(Yambot v. Hon. Artemio Tuquero [2011]).
Filadams Pharma v. CA, 426 SCRA 460 March 30, 2004
Question:
Where the Secretary of Justice dismisses an appeal on the ground
that no probable cause exists, what is the remedy of the adverse party?
Answer:
If his motion for reconsideration is denied by the Secretary of Justice,
since there is no more appeal or other remedy available in the ordinary
course of law, the procedure is to file a petition for certiorari with the CA
on the ground of grave abuse of discretion under Rule 65 of the 1997 Rules
of Civil Procedure.
Conditions for appeal to the Office of the President from the DOJ
While judicial pronouncements do not allow an appeal to the Court of
Appeals under Rule 43 from the resolution of the Secretary of Justice, the
appeal referred to in such pronouncements evidently pertain only to a
judicial appeal, an administrative appeal is not proscribed. Likewise
Memorandum Circular No. 58 dated June 30, 1993, provides that the appeals
from the petition for review of “decisions/orders/resolutions of the Secretary
of Justice on preliminary investigations of criminal cases are entertained by
the Office of the President” under the following conditions which have to
be established as jurisdictional facts:
(a)The offense involved is punishable by reclusion perpetua to death;
(b)New and material issues are raised which were not previously
presented before the DOJ and hence, were not ruled upon;
©The prescription of the offense is not due to lapse within six (6)
months from notice of the questioned resolution; and
(d)The appeal or petition for review is filed within thirty (30) days from
notice.
If the appeal does not clearly fall within the jurisdiction of the Office of the
President, the appeal shall be dismissed outright. If the lack of jurisdiction is
not readily apparent, the appellant/petitioner shall be ordered to prove the
necessary jurisdictional facts.
Appeal to CA under Rule 43 from resolution of the Office of the
President and Rule 45 from CA to SC on pure question of lawFrom the office of the President, the aggrieved party may file an appeal with
the Court of Appeals pursuant to Rule 43. Under Sec. 1, the final orders
or resolutions of the Office of the President is appealable to the Court of
Appeals by filing a verified petition for review following the procedure set
by Sec. 5 and 6 of Rule 43.
The aggrieved party by the judgment, final order or resolution of the Court
of Appeals may avail of an appeal by certiorari (petition for review on
certiorari) to the Supreme Court under Rule 45.
Review of Ombudsman resolution when there is grave abuse of
discretionMaturan v. Ombudsman, 435 SCRA 323, July 7, 2004
Question:
What is the proper procedure for seeking a review for the resolution
of the Office of the Ombudsman finding the existence or non-existence of a
probable cause?
Answer:
The proper course of action is a special civil action for certiorari
before the Supreme Court. While the Ombudsman has the full discretion
to determine whether a criminal case should be filed, the SC is not
precluded from reviewing the Ombudsman’s action when there is grave
abuse of discretion amounting to a lack or excess of jurisdiction, in which
case Rule 65 of the Rules of Court may be invoked pursuant to present
practice or, exceptionally, even Sec. 1, Art. VIII of the 1987 Constitution.
Accordingly, where the finding of the Ombudsman as to the existence of
probable cause is tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction, while there is no appeal, the aggrieved party may
file with the SC a petition for certiorari under Rule 65.
Once complaint or information is filed in court, court has discretion to
dismiss complaint or information
What is the procedure if on appeal the DOJ Secretary finds no probable
cause but the information is already filed in court?
A: Under the new rules, the fiscal is ordered to file a motion to dismiss the
case in court.
But will the court be bound by the findings of the Justice Secretary and
obligated to grant the motion?
That was the issue in the case of CRESPO. And the SC ruled that:
CRESPO vs. MOGUL, June 30, 1987
HELD: The power of the fiscal is practically absolute whether to file
or not to file. But once the case is filed in court, the power now
belongs to the judge and he is the one who will determine whether to
proceed or not to proceed. The court will be the one to decide because
control over the case is already shifted in the court. The court now has
the absolute power and once the court tell the fiscal ‘you proceed,’ then
the fiscal has to proceed. The latter should not shirk from his
responsibility of representing the People of the Philippines. So the
absolute power of the fiscal ends upon the filing of the case in court.
Advice to the Sec. of Justice once info is filed in court
“As an advice [note the word advice], that in order to avoid this
unpleasant situation where the opinion of the Secretary of Justice is not to
proceed but the opinion of the judge is to proceed, and the fiscal is caught
in the middle, when the case is already filed in court, the Secretary of
Justice as much as possible, should not review the resolution of the fiscal
to file when the case is already filed in court to avoid this unpleasant
situation because it will really cause a conflict of opinion between the
two (2) offices.”
Santos v. Orda, 437 SCRA 504, September 1, 2004
Facts:
Accused were charged with murder in an information filed by the
City prosecutor.
On appeal to the DOJ, the Secretary reversed the prosecutor and ordered
him to withdraw the information.
Despite the pendency of a motion for reconsideration filed by complainant
with the DOJ Secretary, the prosecutor submitted a motion to withdraw the
information.
The RTC granted the motion subject to re-filing of the information if the
DOJ reverses itself.
A motion for reconsideration was denied by the RTC stating that it cannot
order the re-filing of the Information if the DOJ and the public prosecutor
refuse to do so.
Issue:
Did the RTC commit a grave abuse of it s discretion in granting the
prosecutor’s motion to withdraw the information on the Secretary of
Justice’s finding that there was no probable cause?
Held:
Yes. Once an information is filed in court, any disposition of the case
or dismissal or acquittal or conviction of the accused rests within the
exclusive jurisdiction, competence, and discretion of the trial court. A
motion to dismiss the case filed by public prosecutor should be addressed
to the court who has the option to grant or deny the same. In resolving the
motion, the trial court should not rely solely and merely on findings of the
public prosecutor or the Secretary of Justice that no crime was committed
or the evidence of the possession of the public prosecutor is insufficient to
support a judgment of conviction of the accused. The trial court should
make an independent assessment of the merits of the case based on the
affidavits, documents, or evidence appended to the Information; or any
evidence already adduced before the court by the accused at the time the
motion is filed by the public prosecutor.
In this case, the RTC failed to make an independent assessment of the
merits of the cases and the evidence on record or in the possession of the
public prosecutor. In granting the motion of the public prosecutor to
withdraw the information, the RTC relied solely on the joint resolution of
the Secretary of Justice. In granting the public prosecutor’s motion, the
RTC abdicated its judicial power and acted as mere surrogate of the
Secretary of Justice.
Authority of Regional State Prosecutors to reviewUnder the present set-up, the Regional State Prosecutors are authorized to
resolve petitions for review of resolutions of Provincial/City Prosecutors
in cases cognizable by the MeTC, MTC, MCTC, except in the National
Capital Region. Nevertheless, in the interest of justice, the Secretary of
Justice retains the power to review resolutions of the RSPs in appealed case
(DOJ Circular No. 70-A, June 10, 2000).
Automatic review by Regional State Prosecutor
In addition, dismissals by the provincial or city prosecutors of drugrelated cases (RA 9165) involving the maximum penalty of life
imprisonment to death shall be subject to automatic review by the RSP
having jurisdiction over the prosecution office concerned. (DOJ
Circular No. 46, June 26, 2003).
Appeal to COMELEC from the resolution of prosecutor in election
offenses
In cases where the State Prosecutor, or Provincial or City Fiscal exercises
the delegated power to conduct preliminary investigation of election offense
cases, after the investigating officer submits his recommendation, said
officers have already resolved the issue of probable cause. From such
resolution, appeal to the Comelec lies. As the exercise by the Commission of
its review powers would, at this point, already constitute a second look on
the issue of probable cause, the Comelec’s ruling on the appeal would be
immediately final and executory. (Faelnar vs. People, 331 SCRA 429, 436
[2000])
Note: Section 5, “When warrant shall issue” will be discussed later as
part of the judicial process
SEC. 7. Records.
Records
1. Records supporting the information or complaint—An information or
complaint filed in court shall be supported by:
1. the affidavits and counter-affidavits of the parties and their
witnesses,
2. supporting evidence, and
3. the resolution on the case
2. Record of the PI conducted by a prosecutor or other officers as may be
authorized by law:
1. shall not form part of the record of the case
2. however, the court, on its own initiative or on motion of any party,
may order the production of the record or any of its part when:
1. necessary in the resolution of the case or any incident
therein, or
2. it is to be introduced as an evidence in the case by the
requesting party
1. Purpose of requirement
Okabe v. Gutierrez, 429 SCRA 685, May 27, 2004
Question:
What is the purpose of the requirement under Sec. 8 (a), Rule 112,
Revised Rules on Criminal Procedure that an information or complaint filed
in court shall be supported by affidavits and counter-affidavits of the
parties and their witnesses, together with the other supporting evidence of
the resolution.
Answer:
It is intended to allow the judge to personally determine the
existence or non-existence of the probable cause for issuing a warrant of
arrest against the accused. However, if the judge finds the records and/or
evidence submitted by the investigating prosecutor to be insufficient, he
may order the dismissal of the case, or direct the investigating prosecutor
either to submit more evidence, to enable him to discharge his duty. The
judge may even call the complainant and his witness to themselves answer
the court’s probing questions to determine the existence of probable
cause.
2. Record as evidence during trial
People v. Rondina, 149 SCRA 128, April 8, 1987
Issue:
Where an offense can only be prosecuted upon complaint of the
offended party, is it necessary to mark and introduce during the trial the
written complaint in evidence as the basis of the information filed by the
prosecutor?
Held:
No. Under the rule prevailing at the time this case was commenced
and tried, the complaint was considered part of the record of the
preliminary investigation and had to be transmitted to the trial court upon
the filing of the corresponding charge. Such complaint was in fact
transmitted as required and could therefore be judicially noticed by the
trial judge without the necessity of its formal introduction as evidence of
the prosecution.
3. Records of previous dismissal
Santos v. People, 395 SCRA 507, January 20, 2003
Facts:
The MTC judge who conducted the preliminary investigation for the
crime of attempted rape dismissed the complaint and he was affirmed by
the Provincial Prosecutor. The Secretary of Justice, however, reversed both
of them so that trial proceeded.
Issue:
Should the previous dismissal of the case entitle the accused to an
acquittal?
Held:
The previous dismissal of the case during its preliminary investigation
stage before the Provincial Prosecutor is immaterial. Under Sec. 8, Rule 112
of the Rules on Criminal Procedure, the record of the preliminary
investigation does not form part of the RTC records unless introduced as
evidence during the trial. Absent such introduction, the records of
preliminary investigation cannot be treated as evidence in court; neither
may the trial court be compelled to take judicial notice of the same. A
careful review of the records of this case, however, will show that the
accused presented, and formally offered as evidence, the records of the
preliminary investigation. Nonetheless, these records will not exculpate the
accused. The dismissal of the case by the investigating MTC judge and by
the provincial prosecutor was based on the report in the barangay blotter
which are highly unreliable and undeserving of any probative value. For
good reasons, the dismissal of the case was reversed by the Secretary of
Justice.
SEC. 8. Cases not requiring a preliminary investigation nor covered
by the Rule on Summary Procedure.
Cases not requiring a PI nor covered by the Rule on Summary Procedure
1. Cases covered by this section – cases where the imposable penalty is a:
1. maximum of 4 years and 2 months, and
2. minimum of 6 months and 1 day
2. Two [2] ways of instituting a criminal case under Sec. 8:
1. File the complaint with the prosecutor while observing the
procedure outlined in Sec. 3
2. File the complaint or information with the MTC
Q: Now, going back to Rule 110. In cases cognizable by the MTC, how is it
instituted?
A: Section 1, Rule 110:
SECTION 1. Institution of criminal actions.– Criminal actions shall
be instituted as follows:
(a) For offenses where a preliminary investigation is
required pursuant to section 1 of Rule 112, by filing the
complaint with the proper officer for the purpose of conducting
the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or
information directly with the Municipal Trial Courts and
Municipal Circuit Trial Courts, or the complaint with the office
of the prosecutor. In Manila and other chartered cities, the
complaints shall be filed with the office of the prosecutor unless
otherwise provided in their charters.x x x x x
So there are two (2) ways: (a) direct filing or (b) you file with the prosecutor
and the provincial prosecutor will file the information.
Procedure when complaint is filed with the prosecutor first instead of
directly filing an information in courtLet’s relate this to Section 8. If it is filed with the prosecutor, the procedure
in Section 3[a] of this rule shall be observed. There is no need for
preliminary investigation. The prosecutor will simply find out based on the
affidavit of the complainant and his witnesses whether or not there is
probable cause. NO more subpoena and counter-affidavit.
Only Section 3[a] should be followed. There is no mention of [b], [c] or
[d].
SEC. 3. Procedure. – The preliminary investigation shall be
conducted in the following manner:
(a) The complaint shall state the address of the
respondent and shall be accompanied by the affidavits of
the complainant and his witnesses, as well as other
supporting documents to establish probable cause. They
shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in
their absence or unavailability, before a notary public, each
of whom must certify that he personally examined the
affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
Procedure when Complaint is filed directly with Prosecutor
1. The complaint must:
1. state the address of the respondent, and
2. be accompanied by:
1. affidavits [subscribed, sworn to and certified] of the
complainant and his witnesses, and
2. other supporting documents to establish probable cause;
2. The prosecutor shall act on the complaint based on the affidavits and
other supporting documents submitted by the complainant within 10 days
from its filing.
3. The respondent is not allowed to file counter-affidavits
Procedure when Complaint or Information is filed with the MTC
1. The complaint must:
1. state the address of the respondent, and
2. be accompanied by:
1. affidavits [subscribed, sworn to and certified] of the
complainant and his witnesses, and
2. other supporting documents to establish probable cause;
2. If the judge finds NO probable cause
1. He shall dismiss the complaint:
1. Within 10 days after the filing of the complaint or
information,
2. After personally:
1. evaluating the evidence, or
2. examining in writing and under oath the complainant
and his witnesses in the form of searching questions and answers;
or
2. He may require the submission of additional evidence:
within 10 days from notice, to determine further the existence
of probable cause.
3. If the judge still finds no probable cause despite the additional
evidence,
1. He shall dismiss the case,
2. Within 10 days from:
1. submission of additional evidence, or
2. expiration of the period to submit the additional
evidence
3. If the judge finds probable cause:
1. He shall:
1. issue a warrant of arrest, or commitment order if the
accused had already been arrested, and
2. hold the accused for trial
2. He may issue summons instead of a warrant of arrest:
if the judge is satisfied that there is no necessity for placing the
accused under custody
Section 8[b].Procedure when information is filed directly with the
MTCWhen a complaint or information involving a ‘direct filing case’ is filed
with the Municipal Trial Court either by the offended party, peace officer, or
prosecutor, the trial judge may take any of the following actions, viz:
(a)If filed by the offended party or peace officer, he shall follow the
procedure outlined in Section 3(a) of Rule 112. Within ten (10) days after
the filing of the complaint or information, he may dismiss the complaint if
he finds no probable cause after personally examining in writing and under
oath the complainant and his witnesses in the form of searching questions
and answers;
(b)If filed by the prosecutor, he may dismiss the case within ten (10) days
from the filing of the complaint or information if he finds no probable cause
after personally evaluating the evidence;
(c)He may require the offended party or the prosecutor, as the case may
be, to submit additional evidence within ten (10) days to determine further
the existence of probable cause, and thereafter dismiss the same within ten
(10) days from submission thereof if he still finds no probable cause; or
(d)If he finds probable cause, and the accused person is not under the
custody of the law, he shall issue a warrant of arrest, or if the accused is
under custody, issue a commitment order. (Victorias Milling Co. Inc. vs.
Padilla GR 156962, October 6, 2008)
The next sentence is new: “He 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. When he finds
probable cause, he shall issue a warrant of arrest, or a commitment order if
the accused had already been arrested, and hold him for trial. [The next
sentence is new again:] However, if the judge is satisfied that there is no
necessity for placing the accused under custody, he may issue summons
instead of a warrant of arrest.”
So it is not really necessary that every time a case is filed in the MTC with a
penalty not more than 4 years and 2 months, and there is probable cause that
a warrant of arrest be issued.
He may instead issue summons. Summons here is not really the same in the
Rules of Court. It is just a notice that he is required to appear. And that is a
new provision.
Cases:
1. Penalty of prision correccional medium or less
Sesbreno v. Aglugub, 452 SCRA 365, February 28, 2005
Question:
What procedure should be followed in a complaint for violation of
Art. 177 [Usurpation of Authority] of the Revised Penal Code, where the
penalty prescribed by law is prision correccional in its minimum and
medium periods or from 6 months and 1 day to 4 years and 2 months?
Answer:
The procedure laid down in Sec. 3(a), Rule 112 of the Rules shall be
observed. If the judge finds no sufficient ground to hold the respondent for
trial, he shall dismiss the complaint or information. Otherwise, he shall
issue a warrant of arrest, or a commitment order if the accused had already
been arrested, and hold the latter for trial. However, the judge is given the
discretion to merely issue summons instead of a warrant of arrest if he
does not find it necessary to place the accused under custody. Whether it is
necessary to place the accused in custody in order not to frustrate the ends
of justice is left to the judge’s sound judgment.
Q: Can a preliminary investigation be stopped by asking the court to
grant a preliminary injunction or a restraining order? Can a criminal
prosecution be enjoined or restrained?
A: NO, as a GENERAL RULE. If you believe that you are not guilty,
then you prove that in court. Anyway if you are not guilty, you will be
acquitted.
However, the SC came out with EXCEPTIONS cited in the case of
BROCKA vs. ENRILE, 192 SCRA 83
HELD: Indeed, the general rule is that criminal prosecution may not be
restrained or stayed by injunction, preliminary or final. There are
however exceptions, among which are:
a. To afford adequate protection to the constitutional rights of
the accused;
b. When necessary for the orderly administration of justice or
to avoid oppression or multiplicity of actions;
c. When there is a pre-judicial question which is sub judice;
d. When the acts of the officer are without or in excess of
authority;
e. Where the prosecution is under an invalid law, ordinance or
regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by the
lust for vengeance; and
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.
WHEN THE CRIME COMMITTED DOES NOT REQUIRE A PRELIMINARY
INVESTIGATION
crime or offense committed
Metro-Manila / Chartered City
File with Prosecutor's Office
Filing thru
Filing in Court
Prosecutor's
Sec. 1, Rule 110 States:
Office
“Criminal actions shall be instituted as follows:
For offenses where a preliminary investigation is required pursuant to
section 1 of Rule 112, by filing the complaint with the proper
officer for the purpose of conducting the requisite preliminary
investigation.
For all other offenses,
(1) by filing the complaint or information directly with the
Municipal Trial Courts, Municipal Circuit Trial Courts, or
(2) the complaint with the office of the prosecutor.
(3) In Manila and other chartered cities, the complaint shall be filed
with the office of the prosecutor unless otherwise provided in their
charters.
The institution of the criminal action shall interrupt the period of
prescription of the offense charged unless otherwise provided in
special laws.”
Procedure for cases not requiring a preliminary investigation
Where a preliminary investigation is not required because the penalty
prescribed for offense involved is less than four (4) years two (2) months
and one (1) day, two ways of initiating the action are prescribed, namely:
4. By filing the complaint directly with the prosecutor; or
5. By filing the complaint of information directly with the first level
court;
6. except in Manila or other chartered cities where the complaint should
be filed with the prosecutor’s office unless otherwise provided by
their charters (Sec. 8, Rule 112).
So there are two (2) ways: (a) direct filing or (b) you file with the prosecutor
and the provincial prosecutor will file the information.
Procedure when complaint is filed with the prosecutor first instead of
directly filing an information in courtLet’s relate this to Section 8. If it is filed with the prosecutor, the procedure
in Section 3[a] of this rule shall be observed. There is no need for
preliminary investigation. The prosecutor will simply find out based on the
affidavit of the complainant and his witnesses whether or not there is
probable cause. NO more subpoena and counter-affidavit.
Only Section 3[a] should be followed. There is no mention of [b], [c] or
[d].
SEC. 3. Procedure. – The preliminary investigation shall be
conducted in the following manner:
(a) The complaint shall state the address of the
respondent and shall be accompanied by the affidavits of
the complainant and his witnesses, as well as other
supporting documents to establish probable cause. They
shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in
their absence or unavailability, before a notary public, each
of whom must certify that he personally examined the
affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
Procedure when Complaint is filed directly with Prosecutor
1. The complaint must:
1. state the address of the respondent, and
2. be accompanied by:
1. affidavits [subscribed, sworn to and certified] of the
complainant and his witnesses, and
2. other supporting documents to establish probable cause;
2. The prosecutor shall act on the complaint based on the affidavits and
other supporting documents submitted by the complainant within 10 days
from its filing.
3. The respondent is not allowed to file counter-affidavits
Procedure when Complaint or Information is filed with the MTC
1. The complaint must:
1. state the address of the respondent, and
2. be accompanied by:
1. affidavits [subscribed, sworn to and certified] of the
complainant and his witnesses, and
2. other supporting documents to establish probable cause;
2. If the judge finds NO probable cause
1. He shall dismiss the complaint:
1. Within 10 days after the filing of the complaint or
information,
2. After personally:
1. evaluating the evidence, or
2. examining in writing and under oath the complainant
and his witnesses in the form of searching questions and answers;
or
2. He may require the submission of additional evidence:
within 10 days from notice, to determine further the existence
of probable cause.
3. If the judge still finds no probable cause despite the additional
evidence,
1. He shall dismiss the case,
2. Within 10 days from:
1. submission of additional evidence, or
2. expiration of the period to submit the additional
evidence
3. If the judge finds probable cause:
1. He shall:
1. issue a warrant of arrest, or commitment order if the
accused had already been arrested, and
2. hold the accused for trial
2. He may issue summons instead of a warrant of arrest:
if the judge is satisfied that there is no necessity for placing the
accused under custody
Section 8[b].Procedure when information is filed directly with the
MTC-
When a complaint or information involving a ‘direct filing case’ is filed
with the Municipal Trial Court either by the offended party, peace officer, or
prosecutor, the trial judge may take any of the following actions, viz:
(a)If filed by the offended party or peace officer, he shall follow the
procedure outlined in Section 3(a) of Rule 112. Within ten (10) days after
the filing of the complaint or information, he may dismiss the complaint if
he finds no probable cause after personally examining in writing and under
oath the complainant and his witnesses in the form of searching questions
and answers;
(b)If filed by the prosecutor, he may dismiss the case within ten (10) days
from the filing of the complaint or information if he finds no probable cause
after personally evaluating the evidence;
(c)He may require the offended party or the prosecutor, as the case may
be, to submit additional evidence within ten (10) days to determine further
the existence of probable cause, and thereafter dismiss the same within ten
(10) days from submission thereof if he still finds no probable cause; or
(d)If he finds probable cause, and the accused person is not under the
custody of the law, he shall issue a warrant of arrest, or if the accused is
under custody, issue a commitment order. (Victorias Milling Co. Inc. vs.
Padilla GR 156962, October 6, 2008)
The next sentence is new: “He 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. When he finds
probable cause, he shall issue a warrant of arrest, or a commitment order if
the accused had already been arrested, and hold him for trial. [The next
sentence is new again:] However, if the judge is satisfied that there is no
necessity for placing the accused under custody, he may issue summons
instead of a warrant of arrest.”
So it is not really necessary that every time a case is filed in the MTC with a
penalty not more than 4 years and 2 months, and there is probable cause that
a warrant of arrest be issued.
He may instead issue summons. Summons here is not really the same in the
Rules of Court. It is just a notice that he is required to appear. And that is a
new provision.
WHEN THE SUSPECT OR SUSPECT/S IS/ARE ARRESTED WITHOUT A
WARRANT
crime / offense committed
Warrantless Arrest
(Section 5 R113)
Custodial Investigation
RA 7438
Inquest
Motion to Conduct
Resolution Recommending
PI
either for Filing or Release for
Further Proceeding
Judicial Stage
WARRANTLESS ARREST (Section 5, Rule 113)
Significance of a valid warrantless arrest to evidence seizedLawful warrantless arrests; evidence gathered in flagrante delicto
admissible. As a result of the finding that a buy-bust operation actually took
place and that Linda and Elizabeth were apprehended in flagrante delicto,
the evidence gathered and presented by the prosecution on the occasion of
their lawful arrest without warrant cannot be deemed as the “fruits of a
poisonous tree,” but are admissible and competent proof of their
guilt. People of the Philippines v. Linda Alviz y Yatco and Elizabeth Dela
Vega y Bautista, G.R. No. 177158, February 6, 2013.
Rule 113 Arrest
Section 1. Definition
The taking of a person into custody
2. Purpose
In order that he may be bound to answer for the commission of an
offense
Two kinds of arrest:
1. with a warrant; and
2. a valid warrantless arrest.
Common requisite or basis: probable cause – facts and circumstances that
would convince a prudent, reasonable man to believe that (a) a crime was
committed and (b) the person to be arrested probably committed it.
General rule: A judge has jurisdiction to determine existence of
probable cause.
Warrantless Arrest as exception
Here the determination of probable cause is therefore made by the
arresting officer or civilian effecting the arrest precisely because of the
urgency in the situation.
Instances of valid warrantless arrest-
Section 5. Valid Warrantless Arrests
Two important considerations:
1. Kinds and requisites of each; and
2. Procedure to follow when effecting the arrest
A. Kinds and conditions of warrantless arrest1. (In flagrante delicto arrest) When in the presence of the
arresting officer or private person, the person to be arrested:
1. has committed
2. is actually committing, or
3. is attempting to commit a crime [Sec. 5(a)];
2. (Hot pursuit arrest) When:
1. the offense has just been committed, and
2. the arresting officer has probable cause to believe, based on
personal knowledge of facts or circumstances that the person to be
arrested has committed it [Sec. 5(b)]
3. (Arrest of an escapee) When the person to be arrested:
1. is a prisoner who has escaped from a penal establishment or
place where He is serving judgment, or
2. is a prisoner who has escaped from a penal establishment or
place he is temporarily confined while his case is pending, or
3. has escaped while being transferred from one confinement
to another [Sec. 5(C)
B. Procedure
1. Persons authorized to make warrantless arrests:
1. A police officer or peace officer, or
2. Any private person (citizen’s arrest)
2. Procedure after arrest is made under in flagrante or hot pursuit
arrest:
1. The person arrested without a warrant shall be delivered to the
nearest police station or jail, and shall be proceeded against in accordance
with Sec. 7 of Rule 112 (Inquest if penalty prescribed is at least 4 years 2
months and 1 day).
In Flagrante Delicto Arrest or caught in the act of committing a crime
arrest and probable cause-
Meaning of and elements of “in flagrante delicto”People v. Chua, 396 SCRA 657,February 4, 2003
Accordingly, for this exception to apply 2 elements must concur:
(1) the person to be arrested must execute an overt act indicating that he
has just committed, is actually committing, or is attempting to commit a
crime; and
(2) such overt act is done in the presence or within the view of the
arresting officer or private person.
People vs. Racho, GR No. 186529, Aug. 3, 2010
The long standing rule in this jurisdiction is that “reliable information”
alone is not sufficient to justify a warrantless arrest. The rule requires, in
addition, that the accused perform some overt act that would indicate that
he has committed, is actually committing, or is attempting to commit an
offense
What is meant by “in his presence”? Presence not enough/Personal
knowledge requiredAn offense is committed in the presence or within the view of an officer,
within the meaning of the rule authorizing an arrest without a warrant,
(a)
(b)
(c)
when the officer sees the offense, although at a distance, or
hears the disturbance caused thereby and proceeds at once to
the scene thereof, or
the offense is continuing; or
(d)
has not been consummated at the time when the arrest is made.
(Padilla vs. CA, 269 SCRA 402, 414 [1997];US vs. Samonte, 16
Phil. 516; Sayo vs. Chief of Police, 80 Phil. 859; People vs.
Alunday, GR 181546, Sept. 3, 2008; People vs. Sucro 195 SCRA
388 [1991])
Is presence of the arresting officer or civilian enough?
It is not enough that the crime has been committed, is being committed or
about to be committed in the presence of the arresting officer or civilian, he
must also be aware (personal knowledge) of such crime before the arrest. In
other words, the acts must be known to the officer or civilian at the time
of their commission through his sensory perceptions before the arrest.
Personal knowledge or awareness must precede the arrest
Knowledge of the commission of the crime in one’s presence must precede
the arrest. (People vs. Burgos, 144 SCRA 01; People vs. Aminudin, 163
SCRA 402; People vs. Mengote, 210 SCRA 114; People vs. Cuizon, 256
SCRA 325; Posadas vs. CA, August 2, 1990 etc)
Cases:
Arrest during buy-bust operation
Teodosio v. People, 431 SCRA 194, June 8, 2004
Held:
Yes. An arrest made after an entrapment does not require a warrant
inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113,
Sec. 5(a) of the Rules of Court. Any search resulting from a lawful
warrantless arrest is valid because the accused committed a crime in
flagrante delicto, that is, the person arrested committed a crime in the
presence of the arresting officers.
In People v.Manlangit (2014), the Court ruled that the absence of a prior
surveillance or test buy does not affect the legality of the buy-bust
operation and the warrantless arrest of the accused caught in flagrante
delicto.
Continuing offenses
Umil v. Ramos, 187 SCRA 311, July 9, 1990
Issue:
May a person be arrested without a warrant for the crime of
rebellion even if he is not at the time of arrest actually in the act of taking
up arms against the government?
Held:
Yes. Rebellion being a continuing offense, the arrest without warrant
is justified as it can be said that he is committing an offense when arrested.
The crimes of rebellion, subversion, conspiracy or proposal to commit such
crimes, and crimes or offenses committed in furtherance thereof or in
connection therewith constitute direct assaults against the State and are in
the nature of continuing crimes. A rebel may be deemed to be in flagrante
delicto at all times for purposes of arrest.
Mere suspicion is insufficient as personal knowledge is required.
People vs. Aminnudin, 163 SCRA 402 (1988)
The PC officers had received a tip two days before the arrest from one of
their informers that the accused was on board an identified vessel on a
particular date and time bound for Iloilo City and was carrying marijuana.
He was identified by name. Acting on this tip, they waited for him in the
evening of June 25,1984, and approached him as he descended from the
gangplank after the informer had pointed to him. They detained him and
inspected the bag he was carrying. It was found to contain 3 kilos of what
were later analyzed as marijuana leaves by an NBI forensic examiner, who
testified that she conducted microscopic, chemical and chromatographic
tests on them.
Is the arrest valid?
Is the search proper?
Held:
Contrary to the averments of the government, the accused was not caught in
flagrante nor was a crime about to be committed, or had just been committed
to justify the warrantless arrest. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that
called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that
triggered his arrest. The identification by the informer was the probable
cause as determined by the officers (and not a judge) that authorized them to
pounce upon Aminnudin and immediately arrest him.
There was no basis for an inflagrante delicto arrest and no urgency to
justify a warrantless search of a moving vehicle which can lead to the
warrantless arrest. Hence, the warrantless arrest has no justification.
Arrest based on report
People v. Chua,396 SCRA 657,February 4, 2003
Question:
May an in flagrante delicto arrest be made based solely on reports?
Answer?
No. It has been held that “reliable information” alone, absent any
overt act indicative of a felonious enterprise in the presence and within the
view of the arresting officers, is not sufficient to constitute probable cause
that would justify an in flagrante delicto arrest. Hence, in People v.
Aminnudin [July 6, 1988], it was ruled that “accused was not, at the
moment of his arrest, committing a crime nor was it shown that he was
about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon and there was no outward
indication that called for his arrest. To all appearances, he was like any of
the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension.”
The Amminnudin case as compared to those where there is lack of
opportunity to obtain a warrant of searchPeople vs. Saycon, 263 SCRA 325
A warrantless arrest, search and seizure, based on information from a
NARCOM agent that a suspected shabu courier was arriving at Dumaguete
City on board a vessel and who was pointed to by another agent, was
justified although the suspect was not perceptively committing a crime but
like Aminnudin merely alighted from the vessel.
The search and seizure was justified under the principle justifying the
search of moving vehicles as there was no time to obtain a warrant.
This warrantless search led to a valid warrantless arrest in flagrante
delicto arrest.
The Supreme Court observed:
The record shows that the NARCOM officers were uncertain as to the
precise date and time appellant would arrive from Manila; all they knew is
that he would be taking a boat from Manila to Dumaguete on the morning of
8 July 1992. More specific details were received earlier on the morning that
the appellant would be arriving the same morning. Clearly, the agents had to
act quickly but there was not enough time to obtain a warrant of arrest or
search warrant.
HOT PURSUIT ARREST
Requisites (probable cause)
1. the offense has just been committed; and
2. probable cause to believe, based on personal knowledge of facts and
circumstances, that the person to be arrested committed it.(People vs. Agojo,
GR No. 181318, April 16, 2009; People vs. Del Rosario, 305 SCRA 740,
746 [1999]; People vs. Mahusay, 282 SCRA 80, 86 [1997]; Umil v s.
Ramos, 202 SCRA 251 [1991])
Second Element: “ Has just been committed”
People vs. Burgos, 144 SCRA 1
It is not enough that there is reasonable ground to believe that the person to
be arrested has committed a crime. A crime must in fact, or actually have
been committed first. That a crime has actually been committed is an
essential precondition. It is not enough to suspect that a crime may have
been committed. The fact of the commission of the offense must be
undisputed.
People vs. Del Rosario, 305 SCRA 740, 760 [1999]
“Has just been committed” connotes immediacy in point of time. The
recency contemplated here, in relation to the making of the warrantless
arrest, is the time when the crime was in fact committed, and not the time
when the person making the arrest learned or was informed of such
commission.
If there is an appreciable length of time between the two then a warrant of
arrest must be secured.
In Pestilos v. Generoso (2014), the Court explained: In other words, the
clincher in the element of “personal knowledge of the facts and
circumstances” (indicating that a crime was indeed committed) is the
required element of immediacy wthin which those facts or
circumstances should be gathered.
This required time element acts as a safeguard to ensure that the police
officers have gathered the facts or perceived the circumstances within a very
limited time frame. This guarantees that the police officers would have no
time to base their probable cause finding on facts and circumstances
obtained after an exhaustive investigation.
The reason of the element of immediacy is this – as the time gap for the
commission of the crime to the arrest widens, the piece of information
gathered are prone to become contaminated and subjected to external
factors, interpretation and hearsay.
Need for thorough investigation and exercise of reasonable judgmentIn determining the commission of the crime as a fact, a thorough
investigation and the exercise of reasonable judgment are needed.
Third element: Probable cause to believe, based on personal knowledge
of facts or circumstances, that the person to be arrested committed it.
“Thus, while the law enforcers may not actually witness the execution of an
act constituting the offense, they must have direct knowledge or view of
the crime right after its commission. They should know for a fact that a
crime was committed, indicating that he perpetrated the crime. Again,
mere intelligence information that the suspect committed the crime will not
suffice. The arresting officers themselves must have personal knowledge of
facts showing that the suspect performed the criminal act. Personal
knowledge means actual belief or reasonable grounds of suspicion, based
on actual facts, that the person to be arrested is probably guilty of
committing the crime.
In most cases, the arrest is validated based on the knowledge derived by the
arresting officer from his investigation and the testimony of witnesses
(People vs.Posadas, 342, SCRA 388, [2000])
As a minimum, however, and to prevent abuse, an eyewitness or victim must
accompany the arresting officer during the arrest. At the very least, material
or physical evidence must be found linking the person to be arrested to the
crime. In People vs. Sinoc (275 SCRA 357, [1997]), the Court validated the
arrest in a robbery case, because the accused was holding the key to the
stolen vehicle. This would at least ensure that arrests are not based on mere
suspicion.
Probable cause and Personal Knowledge of Facts
“Personal knowledge” of facts in arrests without a warrant under Section5(b)
of Rule 113, must be based upon “probable cause” which means an“actual
belief or reasonable grounds of suspicion.” The grounds of suspicion are
reasonable when, in the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty of committing
the offense is based on actual facts, i.e. supported by circumstances
sufficiently strong in themselves to create probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith on the part of the
peace officers making the arrest. (Abelita III v. Doria, GR No. 170762,
Aug. 14, 2009; Posadas vs. Ombudsman, 341 SCRA 395, 397 [2000] citing
People vs. Doria, 301 SCRA 668, 709 [1991])
Personal knowledge of facts must be based on
probable cause.
There was a pay-off in a kidnapping case at Magallanes
Commercial Center which was witnessed by police officers.
They saw the accused take the money from the car trunk.
This information was passed on to the police officers stationed
at Fort Bonifacio where accused was expected to pass by.
Then, there was arrest and search.
Was the arrest without warrant valid? Why?
The arrest was done pursuant Section. 5(b) of Rule 113 of the
Rules of Court which provides that when an offense has in fact been
committed and he has personal knowledge of facts indicating that the
person to be arrested has committed it. The second instance of
lawful warrantless arrest covered by paragraph (b) necessitates two
stringent requirements before a warrantless arrest can be effected:
(1) an offense has just been committed; and (2) the person making
the arrest has personal knowledge of facts indicating that the person
to be arrested has committed it.
Personal knowledge of facts must be based on probable
cause, which means an actual belief or reasonable grounds of
suspicion.
The grounds of suspicion is reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense is
based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of
guilt of the person to be arrested. A reasonable suspicion,
therefore, must be founded on probable cause, coupled with
good faith on the part of the peace officers making the arrest.
Section 5(b0, Rule 113 of the 1995 Rules on Criminal Procedures
does not require the arresting officers to personally witness the
commission of the offense with their own eyes. (Abelita III v. Doria,
G.R. 170672, 14 August 2009, 596 SCRA 220, 226-227 citing People
v. Lozada, 454 Phil. 241, 250-251 (2003)).
It is sufficient for the arresting team that they were
monitoring the pay-off for a number of hours long enough for
them to be informed that it was indeed appellant, who was the
kidnapper. This is equivalent to personal knowledge based on
probable cause. (People v. Uyboco, G.R. No. 178039, January 19,
2011).
Problem:
A police officer heard X shout for help and immediately went to the place
where the voice came from and saw there X lying on the ground with stab
wounds. (A crime has just been committed) He also saw Y a meter away
from X holding a bloodied knife which he threw away upon seeing the
police officer. Despite being ordered to stop Y ran away and was able to
evade arrest. It was only in the evening of that day when Y was arrested
without a warrant inside a friend’s house. (Reasonable ground of suspicion,
i.e., personal knowledge of actual facts creating a reason to believe that the
accused committed the crime).
Is the warrantless arrest valid?
Yes, under hot pursuit as the officer had actual belief that Y committed the
offense and that it has just been committed.
Where no probable cause exists
People v. Cubcubin, 360 SCRA 690, July 10, 2001
Facts:
After being informed that a person has been shot, the police sent a
team to investigate. They saw the victim slumped on his tricycle parked
near the road. (a crime has just been committed)
After talking to a waitress and a tricycle driver who gave them the
description of the person last seen with the victim, the police went to the
house of accused. They knocked and when accused opened the door, they
noticed that he fitted the description. Asked about the killing, accused
denied involvement. Entering the house, they found a “bloodied” Hanes Tshirt placed over a divider. When the police picked it up, two spent .38
caliber shells fell from it. They then brought him to the cafe where the
waitress identified him as the person she saw drinking beer with the victim.
(No actual belief nor reasonable ground of suspicion because the facts
known especially the information given by the waitress that he was the
person she saw drinking or the last person seen with the victim is not a valid
basis for the suspicion that he killed the victim).
Issue:
Was the arrest lawful?
Held:
No. For a warrantless arrest to be valid, it is required that the
offender has just committed an offense and the arresting officer had
personal knowledge of facts indicating that the person arrested has
committed it. In this case, the first requisite is satisfied because the arrest
of accused was effected shortly after the victim was killed. But they had no
probable cause to believe that accused committed the crime. Their
knowledge of facts and circumstances from which they inferred that
accused was guilty was based entirely on what they had been told by
others: to wit, the report of the killing, the information that he was at the
cafe with the victim, and the description given by the tricycle driver. At
the time he was arrested, he was not doing anything overtly criminal.
Effect of an illegal arrest on jurisdiction of the court
The illegality of the arrest affects only the jurisdiction of the court over the
person of the accused.
A waiver of an illegal warrantless arrest does not also mean a waiver of
the inadmissibility of evidence seized during an illegal warrantless arrest.
(People v. Nuevas, 516 SCRA 463, Feb. 22, 2007)
It has been ruled time and again that an accused is stopped from assailing
any irregularity with regard to his arrest if he fails to raise the issue or to
move for the quashal of the information against him on this ground before
his arraignment. Any objection involving the procedure by which the court
acquired jurisdiction over the person of the accused must be made before
he enters his plea; otherwise, the objection is deemed waived. (People v.
Tan GR No. 191069, Nov. 15, 2010)
When to question legality of arrest; Waiver of right to question
The rule that the accused is precluded after arraignment from questioning the
illegal arrest or the lack of or irregular preliminary investigation applies only
if the accused voluntarily enters his plea and participates during trial,
without previously invoking his objections thereto. There must be clear and
convincing proof that the accused had an actual intention to relinquish his
right to question the existence of probable cause ( Jose Antonio C. Leviste v.
Ho. Elmo M. Alameda, et al., GR No. 182677, Aug. 3, 2010; Borlongan v.
Pena, GR No. 143951, May 25, 2010).
An invalid arrest is not sufficient cause to set aside a judgmentNevertheless, even if the accused’s warrantless arest was proven to be
indeed invalid, such a scenario would still not provide salvation to
accused’s cause because jurisprudence also instructs us that the illegal
arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after a trial free from
error (People v. Velasco [2013])
Arrest of Escaped Prisoners
An accused who files a “fake” bail bond is considered not merely to have
jumped bail but, for all intents and purposes, to have escaped from detention.
(People vs. Del Rosario, 348 SCRA 603, 609 [2000]; People vs. Ramos, 222
SCRA 557, 570 [1993]) As such the accused may be re-arrested without
warrant.
Other instances of warrantless arrest:
Sec. 13 Rule 113
“If a person lawfully arrested escapes or is rescued, any person may
immediately pursue or retake him without a warrant at any time and in
any place in the Philippines.”
Sec. 23, Rule 114 on bail:
For the purpose of surrendering the accused, the bondsmen may arrest
him or, upon written authority endorsed on a certified copy of the
undertaking, cause him to be arrested by a police officer or any other
person of suitable age and discretion.”
Sec. 23, Rule 114 last par.
An accused released on bail may be re-arrested without the necessity
of a warrant if he attempts to depart from the Philippines without
permission of the court where the case is pending.”
a. Arrest by “invitation”, illegal
Under RA No. 7438, the so-called “invitation” of a person in
connection with an offense he is suspected to have committed is a
prohibited act for which the inviting officer may be held liable (Secs.
2(f) and 4). Mere invitation is covered by the proscription on a
warrantless arrest because it is intended for no other reason than
to conduct an investigation. (People vs. Olivarez, Jr. 299 SCRA 635,
647 [1998])
( Mine: In other words it is considered as a taking of a person into
custody in order to make him answer to an offense)
Thus, RA 7438 expanded the meaning of custodial investigation under
Section 2(f) as including the practice of issuing an “invitation” to a
person who is investigated in connection with an offense he is
suspected to have committed, without prejudice on the liability of the
“inviting” officer for any violation of law.
Thus, where the arrest of the accused, which the arresting officers
ostensibly referred to as an “invitation,” was illegal; so was the
subsequent search and seizure of the stolen items from him. He was
already singled out as a prime suspect in the grisly deed, yet the
police failed to obtain a warrant for his arrest. His warrantless
arrest did not fall under the exceptions provided for in the Rules
of Court. Consequently, whatever was seized from him could not be
used against him. This conclusion is consonant with the raison d’ etre
of the exclusionary rule. (People vs. De la Cruz, 343 SCRA 357, 373374 [2000]
b. Other important points on arrest:
Section 2. Procedure
1. How arrest is made:
1. By an actual restraint of the person to be arrested, or
2. By the submission of such person to the custody of the person
making the arrest
2. Rules in making arrest:
1. Violence or unnecessary force shall NOT be used in making an
arrest, and
2. The person arrested shall NOT be subject to a greater restraint
than is necessary for his detention
Procedure after arrest is made under in flagrante or hot pursuit arrest:
1. The person arrested without a warrant shall be delivered to the
nearest police station or jail, and shall be proceeded against in accordance
with Sec. 7 of Rule 112 (Inquest if penalty prescribed is at least 4 years 2
months and 1 day).
Use of force
People v. Sanchez 227 SCRA 627 November 8, 1993 En Banc: Cruz, J.
Question:
To constitute arrest, must there be an actual use of force by the
arresting officer?
Answer:
No. Application of actual force, manual touching of the body, physical
restraint or a formal declaration of arrest is not required. It is enough
that there be an intent on the part of one of the parties to arrest the
other and an intent on the part of the other to submit, under the belief
and impression that submission is necessary.
1. An arrest may be made on any day and at any time of the day or
night (Sec. 6);
2. (Sec. 8)
How Arrest is Effected by an Officer Without a Warrant
1. General Rule – the officer must inform the person to be
arrested of:
1. his arresting authority, and
2. the cause of his arrest
2. Exceptions – the officer’s failure to apprise the arrestee of the
above is justified when the:
1. person to be arrested flees,
2. person to be arrested forcibly resists before the officer has
opportunity to so inform him of the cause of his arrest and of the
fact that a warrant has been issued for his arrest,
3. giving of such information will imperil the arrest,
4. person to be arrested is then engaged in the commission of
an offense,
5. person to be arrested is pursued immediately after the
commission of an offense, or
6. person to be arrested is pursued immediately after escape
3. (Sec. 9)
How Arrest is Effected by a Private Person
1. General Rule – the private person must inform the person to
be arrested of the:
1. intention to arrest him, and
2. cause of his arrest
2. Exceptions – the private person’s failure to apprise the
arrestee of the above is justified when the:
1. person to be arrested flees,
2. person to be arrested forcibly resists before the officer has
opportunity to so inform him of the cause of his arrest and of the
fact that a warrant has been issued for his arrest,
3. giving of such information will imperil the arrest,
4. person to be arrested is then engaged in the commission of
an offense,
5. the person to be arrested is pursued immediately after the
commission of an offense, or
6. the person to be arrested is pursued immediately after
escape
4. An officer making a lawful arrest may orally summon assistance
(sec. 10)
Assistance while Arrest is being made
1. Right of officer making a lawful arrest:
He may orally summon as many persons as he deems
necessary to assist him in effecting the arrest
2. Obligation of the persons summoned:
Assist the arresting officer in effecting the arrest, provided he
can render such assistance without detriment to himself.
Personality of persons summoned
All persons who come to the aid of agents of authority, and also all public
functionaries, are entitled to be considered as agents of authority, it being
understood, nevertheless, that in order that the person who come to the aid of
agents of authority may be considered agents of authority, it is an essential
condition that they lend assistance by virtue of an order or request of such
agent of authority. (US vs. Fortaleza, 12 Phil. 472 [1909]). Accordingly,
these persons are given the protection of Article 149 of the RPC wherein if
attacked, the offender will be liable for indirect assault.
5. An officer can break a door to effect entrance in order to
arrest under the following conditions:
a) He is refused admittance;
b) He has announced his authority; and
c) He has announced his purpose.(Sec. 11)
6. An officer has the right to break out from building or enclosure
(Sec. 12
Right to Break out from a Building; Requisites
1. An officer has entered the building or enclosure in accordance
with Sec. 11,
2. It is necessary to liberate himself
7. Rights of a person arrested, detained or under custodial
investigation as spelled out in RA 7438:
The right to be assisted by counsel at all times (Sec. 2[a], RA
7438);
The right to remain silent (Sec. 2[b]. RA 7438); and
Right to be visited by the immediate members of his family, by
his counsel, or by any non-governmental organization, national
or international (Sec. 2[f], RA 7438)
Arrestee’s right to be visitedAny person arrested or detained or under custodial investigation shall be
allowed visits by or conferences with any member of his immediate family,
or any medical doctor or priest or religious minister chosen by him or by any
member of his immediate family or by his counsel, or by any nongovernmental organization duly accredited by the Commission on Human
Rights or by any international non-governmental organization duly
accredited by the Office of the President. The person’s “immediate family”
shall include his or her spouse, fiancé or fiancée, parent, or child, bother or
sister, grandparent or grandchild, uncle or aunt, nephew or niece, and
guardian or ward. (Sec. 2[f], RA 7438)
Attorney’s right to visit and confer with arrestee
Sec. 14. Who has the Right to Visit the Person Arrested
1. Any member of the Philippine Bar:
1. At the request of the person arrested or of another acting in his
behalf,
2. May confer privately with such person:
1. in the jail or any other place of custody,
2. at any hour of the day or night
2. A relative of the person arrested, subject to reasonable regulations
Penalty for obstructing, preventing or prohibiting visitAny person who obstructs, prevents or prohibits any lawyer, any member of
the immediate family of a person arrested, detained or under custodial
investigation, or any medical doctor or priest or religious minister or by his
counsel, from visiting and conferring privately chosen by him or by any
member of his immediate family with him, or from examining and treating
him, or from ministering to his spiritual needs, at any hour of the day or, in
urgent cases, of the night shall suffer the penalty of imprisonment of not less
than four (4) years nor more than six (6) years, and a fine of Four thousand
pesos (P4,000.00). (Sec. 4, RA 7438)
8. In cases falling under in flagrante and hot pursuit arrests, the
person arrested shall be forthwith delivered to the nearest police
station or jail and proceeded against in accordance with section 7
of Rule 112 [Inquest proceeding] (last par., Sec. 5 Rule 113)
Admission to bail not a bar to right to question the legality of
an arrestAn application for or admission to bail shall not bar the accused
from challenging the validity of his arrest or the legality of the
warrant issued, provided that he raises the objection before he
enters his plea. The objection shall be resolved by the court as
early as practicable but not later than the start of the trial of the
case (Sec. 26, Rule 114)
CUSTODIAL INVESTIGATION
Constitutional Provision
Sec. 12. (1) Art. III Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in
the presence of counsel. Xxx
What does “investigation” mean?
Custodial investigation which involves:
1. questioning;
2. initiated by law enforcement officers;
3. after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.
The right to custodial investigation begins only when the investigation is
no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect, the suspect has been taken into police
custody, the police carry out a process of interrogations that lends
itself to eliciting incriminating statements.
The reason for making these rights available is to counterbalance the
coercive atmosphere in such investigations.
R.A. No. 7438 has extended the constitutional guarantee to situations in
which an individual has not been arrested but has merely been
“invited”for questioning. (People vs. Domantay, G.R. No. 130612, May
11,1999 and other cases)
RIGHTS OF PERSONS UNDER
CUSTODIAL INVESTIGATION
1) To be informed of his rights to remain silent and to have competent
and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence
of counsel;
2) No torture, force, violence, intimidation or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are
prohibited;
3) Any confession or admission in violation of Self-Incrimination Clause
shall be inadmissible in evidence against him;
4) The law shall provide for penal and civil sanctions as well as
compensation to aid rehabilitation of victims of torture or similar
practice, and their families.
THREE RIGHTS ARE MADE
AVAILABLE
BY SEC. 12(1):
a) The right to remain silent
 Under the right against self-incrimination in Sec. 17,(Rights of
Accused) only an accused has the absolute right to remain silent.
A person who is not an accused may assume the stance of
silence only when asked an incriminatory question.
 Under Sec. 12, however, a person under investigation has the
right to refuse to answer any question. His silence, moreover,
may not be used against him.
b) The right to counsel — Example of those who are not impartial
counsel are:
1) Special counsel, private or public prosecutor, counsel of the
police, or a municipal attorney whose interest is adverse to that
of the accused;
2) a mayor, unless the accused approaches him as counselor or
adviser;
3) a barangay captain;
4) any other whose interest may be adverse to that of the accused.
c) The right to be informed of his rights — the right guaranteed here is
more than what is shown in television shows where the police
routinely reads out the rights from a note card; he must also explain
their effects in practical terms.
UNDER RA 7438
The following are the rights of persons arrested, detained or under
custodial investigation:
1) To be assisted by counsel at all times;
2) Shall be informed , in a language known to and understood by
him, of his right to remain silent and to have competent and
independent counsel, preferably of his own choice, who shall at all
times be allowed to confer privately with him;
3) The custodial investigation report shall be read and adequately
explained to him by his counsel or by the assisting counsel in the
language or dialect known to him; otherwise, such investigation
report shall be null and void;
4) Any extrajudicial confession made by him shall be in writing and
signed in the presence of his counsel or upon a valid waiver, and
in the presence of his any immediate family members, otherwise,
such extrajudicial confession shall be inadmissible in any
proceeding;
5) Any waiver under the provisions of Art. 125 of the RPC or under
custodial investigation, shall be in writing signed by such person in
the presence of his counsel; otherwise such waiver shall be null
and void and of no effect;
6) Shall be allowed visits by his or conferences with any member of
his immediate family, or any medical doctor or priest or religious
minister chosen by him or by his counsel, or by any national NGO
duly accredited by the Office of the President.
Sec. 4 of RA No. 7438 imposes a maximum penalty of 8 years imprisonment
to an arresting or investigating officer who fails to warn the accused of his
rights.
The person may make a valid waiver and/or admission in the presence of
any of his parents, older siblings, spouse, municipal mayor, municipal judge,
district school supervisor, or priest or minister of the gospel (RA 7438 sec.
2) if he has validly waived his right to a lawyer.
What about admissions during a PI?
Prosecutors are not law enforcement officers.
INQUEST Rule 112
SEC 6. When accused lawfully arrested without warrant.
1. When Sec. 6 is applicable:
1. When a person is lawfully arrested without a warrant, and
2. The arrest involves an offense which requires PI
2. When a complaint and information may be filed without need of
the required preliminary investigation:
When an INQUEST has been conducted in accordance with
existing rules
3. Inquest investigation:
An investigation based only on the affidavit of the offended
party, the police, and some witnesses.
An inquest is an investigation conducted by a prosecutor in criminal
cases where a person has been lawfully arrested and detained
without a warrant of arrest. It is informal and summary and its
purpose is to determine whether or not the person detained should
remain under custody and then charged in court. (Sec. 1, Part II,
Manual for Prosecutors)
4. Who shall file the complaint or information against said person
lawfully arrested without a warrant:
1. General Rule – The [Inquest] prosecutor
2. Exceptions – In the absence or unavailability of the inquest
prosecutor, the following may file the complaint directly with the
proper court on the basis of the affidavit of the offended party or
arresting officer or person:
1. the offended party, or
2. a peace officer
Effects when a person lawfully arrested without a warrant asks for
Preliminary Investigation
1. BEFORE the complaint or information is filed:
1. he must sign a waiver of the provision of Art. 125 of the Revised
Penal Code, in the presence of his counsel, but
2. Despite the waiver, he may apply for bail, and
3. The preliminary investigation must be terminated within 15 days
from its Inception
Requisites for a valid waiver of detentionBe it noted that by virtue of R.A. 7438, any waiver by the person
arrested or detained or under custodial investigation shall be
(a)
(b)
in writing, and
signed by such person in the presence of his counsel,
otherwise such waiver shall be null and void. (Sec. 2).
2. AFTER the complaint or information is filed:
1. he may ask for a PI within 5 days [non-extendible] after learning
that the complaint has been filed, otherwise, his right to PI is
deemed waived, and
2. he has the right to adduce evidence in his defense during the PI,
but
3. This has to be done before he is arraigned as the entering of a
plea is deemed a waiver of one’s right to a PI.
Common reason suggests that because the complaint or information
has already been filed, the court has now assumed jurisdiction over
the case. Hence, the accused should address the motion for the
holding of a preliminary investigation to the court. While lawyers
traditionally call the motion a "motion for re-investigation," the term
seems to be a misnomer because it presupposes that a prior
investigation had been held. A "motion to conduct a preliminary
investigation" appears to be a more appropriate term, although the
title is of lesser significance when compared to the essence of the
motion.
An inquest is not a preliminary investigation. It is a summary investigation
and which does not follow the procedures set forth in Sec. 3 of Rule 112.
When inquest is required/requisites
1. the accused is lawfully arrested
This rule applies only in cases where the accused was lawfully arrested
without warrant of arrest. Where the records do not show that the accused
was lawfully arrested, this rule does not apply. The accused is entitled not to
a mere inquest investigation but to a regular preliminary investigation.
During the pendency of such investigation, the accused should be released
from detention subject only to his appearing at the preliminary investigation.
(Larranaga vs. CA; Go vs. CA)
2. that the imposable penalty is not less than 4 years 2 months and 1
day.
An inquest is conducted by a public prosecutor who is assigned inquest
duties as an Inquest Officer and is to discharge his duties only at the police
stations/headquarters of the PNP in order to expedite and facilitate the
disposition of the inquest cases (Sec. 2, Part II, Manual for Prosecutors).
Inquest procedure1. Inquest, how commenced
The inquest proceedings shall be deemed commenced from the time
the Inquest Officer receives the complaint and referral documents from
the law enforcement authorities. These documents include the following:
a. Affidavit of the arrest;
b. The investigation report;
c. The statements of the complainant and the witnesses; and
d. Other supporting evidence gathered.
The affidavit of arrest and the statements or affidavits of the complainant
and the witnesses shall be subscribed and sworn to before the Inquest
Officer by the affiants (Sec. 3, Part II Manual for Prosecutors)
2. Initial duty of the inquest prosecutorUnder DOJ Circular No. 61, dated September 21, 1993, the initial duty of
the inquest officer is to determine if the arrest of the detained person
was made “in accordance with the provisions of paragraphs (a) and (b)
of Section 5, Rule 113.” (For this purpose, the inquest officer may
summarily examine the arresting officers on the circumstances surrounding
the arrest or apprehension o f the detained person [Sec. 8 Part II Manual]).
1. If the arrest was not properly effected, the inquest prosecutor should
proceed under Section 9 of Circular No. 61 which provides:
“When Arrest Not Properly Effected – Should the Inquest Officer find
that the arrest was not made in accordance with the Rules, he shall:
a.)recommend the release of the person arrested or detained;
b)note down the disposition of the referral document;
c)forward the same, together with the record of the case, to the City or
Provincial Prosecutor for appropriate action.
Where the recommendation for the release of the detained person is
approved by the City or Provincial Prosecutor but the evidence on hand
warrant the conduct of a regular preliminary investigation, the order of
release shall be served on the officer having custody of said detainee and
shall direct the said officer to serve upon the detainee the subpoena or notice
of preliminary investigation, together with the copies of the charge sheet or
complaint, affidavit or sworn statements of the complainant and his
witnesses and other supporting evidence. (Beltran vs. People, GR 175013,
June 1, 2007 and companion cases)
2. Procedure when arrest is lawful-
Should it be found, however, that the arrest was properly effected, the
inquest shall proceed but the Inquest Officer shall first ask the detained
person if he desires to avail himself of a preliminary investigation and if
he does, he shall be made to execute a waiver of the provisions of Art.
125 of the Revised Penal Code with the assistance of a lawyer. The
preliminary investigation may be conducted by the Inquest Officer himself
or by any other Assistant Prosecutor to whom the case may be assigned
(Sec.10, Part II, Manual of Prosecutors).
If the Inquest Prosecutor finds that probable cause exists, he shall
prepare the corresponding information with the recommendation that
the same be filed in court (Sec. 13, Part II, Manual).
If no probable cause is found, he shall recommend the release of the
detained person (Sec. 15).
The inquest conducted must be for the offense for which the detainee
was arrested. In Beltran vs. People GR No. 175013, June 1, 2007, the
Supreme Court nullified the second inquest on Beltran for rebellion because
he was arrested without warrant for Inciting to Sedition.
Where accused is illegally arrested
a. Duty of the prosecutor
Go v. CA, 206 SCRA 138 February 11, 1992
Question:Where a person is unlawfully arrested and the police files a
complaint against him for inquest, what should the prosecutor do?
Answer:
When the police files a complaint which is not proper for inquest, the
prosecutor should immediately schedule a preliminary investigation to
determine whether there is probable cause for charging the person in
court. In such a situation, the person is entitled to a preliminary
investigation and that right should be accorded him without any conditions.
He is also entitled to be released forthwith subject only to his appearing
at the preliminary investigation.
b. Duty of the judge when information was filed despite an illegal arrest
San Agustin v. People, 437 SCRA 392,August 31, 2004
Question:
Where an accused has been illegally arrested but thereafter the Office of
the Prosecutor conducted an inquest, instead of a regular preliminary
investigation, and an information was filed against him, what should the
trial court do?
Answer:
The absence of a preliminary investigation does not affect the jurisdiction
of the trial court but merely the regularity of the proceedings. It does not
impair the validity of the Information or otherwise render it defective.
Neither is it a ground to quash the information or nullify the order of
arrest issued against him or justify the release of the accused from
detention.
However, the trial court should suspend proceedings and order a
preliminary investigation considering that the inquest investigation
conducted by the State Prosecutor is null and void.
The RTC commits a grave abuse of its discretion amounting to excess or
lack of jurisdiction if it simply orders the City Prosecutor to conduct a
reinvestigation which is merely a review by the prosecutor of his records
and evidence instead of a preliminary investigation as provided for in Sec.
3, Rule 112 of the Revised Rules on Criminal Procedure.
Inquest during holidays
Soria v. Desierto, 450 SCRA 339, January 31, 2005
Issue: When a person is arrested without a warrant on a Sunday or a
holiday, is the prosecutor required to hold an inquest and charge him
within 12, 18 or 36 hours so as not render the arresting officer liable for
delay in delivery of detained persons under Art. 125 of the Revised Penal
Code?
Held: No. In Medina v. Orozco, Jr. [18 SCRA 1168, 1170], it was ruled:
“But, stock should be taken of the fact that November 7 was a Sunday;
November 8 was declared an official holiday; and November 9 (election
day) was also an official holiday. In these 3 no-office days, it was not an
easy matter for a fiscal to look for his clerk and stenographer, draft the
information and search for the Judge to have him act thereon, and get the
clerk of court to open the courthouse, docket the case and have the order
of commitment prepared. And then, where to locate and the uncertainty of
locating those officers and employees could very well compound the fiscal’s
difficulties. These are considerations sufficient enough to deter us from
declaring that Arthur Medina was arbitrarily detained. For, he was brought
to court on the very first office day following arrest.”
Effect of subsequent issuance of a valid warrant on an initially illegal
arrestPeople v. Sanchez, 227 SCRA 627, November 8, 1993
Question:
Where a person is unlawfully arrested without a warrant, or by
virtue of an invalid warrant, but subsequently a valid warrant is
issued against him, can he question the validity of his continued
detention?
Answer:
No. The issue of his invalid arrest becomes moot and
academic if the new warrant of arrest complies with the
requirements of the Constitution and the Rules of Court. If the first
warrant was unquestionably void, release of the accused for that
reason will be a futile act as it will be followed by her immediate rearrest pursuant to the new and valid warrant, returning her to the
same prison she will just have left. This Court will not participate in
such a meaningless charade.
Direct filing of complaint in court in the absence or unavailability of an
inquest prosecutor
Now, there is a new sentence inserted in Section 6 first paragraph – “In the
absence or unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the proper court.”
– a very radical provision.
Why is this a very radical change?
There is no problem with the MTC because you can file directly in the
MTC. But as a matter of practice, you cannot file a complaint directly with
the RTC. Everything here is done by information. The RTC does not
entertain complaints filed by the police or the offended party.
But now, it is allowed under this situation : – (1) the accused is arrested
without a warrant; (2) the penalty prescribed is not less than 4 years 2
months and 1 day of imprisonment; and (3) there is the absence or
unavailability of an inquest prosecutor.
Posting of bail before case is filed
Despite the waiver, the arrested person may apply for bail and the
investigation must be terminated within 15 days.
Ruiz v. Beldia, 451 SCRA 402, February 16, 2005
Issue:
May a detained person who is not yet facing any charge in
court be granted bail?
Held:
A person lawfully arrested and detained but who has not yet
been formally charged in court, can seek his provisional release
through the filing of an application for bail. He need not wait for a
formal complaint or information to be filed since bail is available to
“all persons” where the offense is bailable. Sec. 6, Rule 112 of Rules
of Criminal Procedure provides that a judge could grant bail to a
person lawfully arrested but without a warrant, upon waiver of his
right under Art. 125 of the Revised Penal Code.
Venue of the application for bailWhile a person lawfully arrested and detained and not yet formally
charged can apply for bail, the application must be filed in the
province, city or municipality where the person arrested is held. In
this case, the bail application should have been filed with a Quezon
City court which has the authority to grant bail and not a Marikina
court because itv is not the place where is held.
How to ask for Preliminary Investigation after inquest and filing of case
in courtNote that the SC had ruled that the period of 5 days is NON-EXTENDIBLE
– that is absolute. (PEOPLE vs. CA, 242 SCRA 645). After 5 days, you have
no more right to ask for a preliminary investigation.
Nature of the five-day period
People v. CA, 242 SCRA 645 March 23, 1995
Issue:
May a motion for “reinvestigation” be filed beyond the 5-day
period from the time accused learns of the filing of the information
against him?
Held:
The period for filing a motion for preliminary investigation
after an information has been filed against an accused who was
arrested without a warrant has been characterized as mandatory by
the Court. Sec. 7 of Rule 112 of the Rules of Court gives the accused
the right to ask for a preliminary investigation but it does not give
him the right to do so after the lapse of the 5-day period. This is in
accord with the intent of the Rules of Criminal Procedure to make
preliminary investigation simple and speedy.
WHEN A SEARCH WARRANT IS ISSUED AND IMPLEMENTED
crime or offense committed
Filing of Application
for Search Warrant
Personal Examination to
Determine Probable Cause
Issuance and Implementation
Of Search Warrant
Arrest of Owner
Motion to Quash
If there is no Arrest
Search Warrant
Custodial
Investigation
Direct Filing
Inquest
General rule and exception
Generally, peace officers are not allowed to conduct search and seizure if
they have no search warrant.(See Sec. 2, Art. III of the Constitution)
a. Definition and Elements of a Search Warrant
1. It is an order in writing,
2. Issued in the name of the People of the Philippines,
3. Signed by a judge, and
4. Directed to a peace officer
5. Commanding him to
1. search for personal property described therein, and.
2. bring it before the court
The purpose is to gather evidence.
Filing for PI
SEC. 2. Court where application for search warrant shall be filed.
Where an Application for Search Warrant may be Filed
1. General Rule:
Before any court within whose territorial jurisdiction a crime was
committed
2. Exception – for compelling reasons stated in the application, before:
1. any court within the judicial region where the crime was
committed if the place of the commission of the crime is known, or
2.any court within the judicial region where the warrant shall be
enforced
Note: In both exceptions, filing in such courts requires compelling
reasons stated in the application.
3. Qualification – if the criminal action has already been filed:
the application shall only be made in the court where the criminal
action is pending.
Search warrants involving heinous crimes and others
The above rules in Section 2 have been deemed modified in AM No. 99-1009-SC dated January 25, 2000, in cases involving heinous crimes, illegal
gambling, dangerous drugs and illegal possession of firearms.
Under the aforementioned issuance the following are authorized to act on
all applications for search warrants involving any of the above crimes:
The Executive Judge and Vice Executive Judges of Regional Trial Courts of
Manila and Quezon City filed by the PNP, NBI, The Presidential AntiOrganized Task Force and the Reaction Against Crime Task Force with the
said courts.
The applications shall be personally endorsed by the heads of said agencies,
for the search of places to be particularly described therein, and the seizure
of property or things as prescribed in the Rules of Court, xxx.
Case:
Sps. Marimla v. People, GR No. 158467, October 16, 2009
The petitioners filed a motion to quash the search warrant and to suppress
the evidence illegally seized. It was contended among others, that the
application for search warrant was filed and the warrant issued by the RTC
Manila, which is a court outside the territorial jurisdiction and judicial
region of the courts of Angeles City and Porac, Pampanga where the alleged
crime was committed. It was also argued that the application for search
warrant was not personally endorsed by the head of the NBI as required by
AM No. 99-10-09-SC.
The SC observed that the cases against petitioners involved a violation of
the Dangerous Drugs Law of 1972 (RA 6425). As such, the application for
search may be filed by the NBI in the City of Manila pursuant to said
memorandum. The Court likewise held that as to the claim that the
application was defective for not having been personally endorsed by the
head of the NBI, the Court held that nothing in said memorandum prohibits
the head of the NBI and of the other law enforcement agencies mentioned
from delegating their ministerial duty of endorsing the application to their
assistant heads. Besides, under Section 31, Chapter 6 of the Administrative
Code of 1987, an assistant head or other subordinate in every bureau may
perform such duties as may be specified by their superior or head, as long
as it is not inconsistent with law.
Ex-parte application for a search warrant
An application for a search warrant is heard ex-parte. It is neither a trial nor
a part of the trial. Action on these applications must be expedited for time
is of the essence. Great reliance has to be accorded by the judge to the
testimonies under oath of the complainant and the witnesses. (Chemise
Lacoste S.A. vs. Fernandez, 214 Phil. 332; Santos vs. Pryce Gases Inc., GR
No. 165122, Nov. 23, 2007).
Authority to Issue and scope of search warrant
Court with power to issue
Kenneth Roy v. Taypin, 331 SCRA 697, May 11, 2000
Held:
Yes. A search warrant is merely a process issued by the court in the
exercise of its ancilliary jurisdiction and not a criminal action which it may
entertain pursuant to its original jurisdiction. The authority to issue search
warrants is inherent in all courts and may be effected outside their
territorial jurisdiction. AO No. 113-95 merely specified which court could
try and decide cases involving intellectual property rights. It did not vest
exclusive jurisdiction with regard to all matters in any one court.
Jurisdiction is conferred upon courts by substantive law, not by
administrative order. Further, a certificate of non-forum shopping is not
required for applications, only for initiatory pleadings.
Power to quash warrant
Inherent in the court’s power to issue search warrants is the power to quash
warrants already issued. After the judge has issued a warrant he is not
precluded to subsequently quash the same, if he finds upon re-evaluation of
the evidence that no probable cause exists. (Skechers USA, Inc. vs. Pacific
Industrial Trdg. Corp. GR 164321 Nov. 30, 2006; People vs. Estela Tuan,
G.R. No. 176066, Aug. 11, 2010)
Non-judicial search warrants prohibitedSalazar v. Achacoso, 183 SCRA 145, March 14, 1990
Place of application/Presence of compelling reason
People v. Chiu, 424 SCRA 72, February 27, 2004
Held:
Yes. The determination of the existence of compelling considerations
of urgency, and the subject, time and place necessitating and justifying the
filing of an application for a search warrant with a court other than the
court having territorial jurisdiction over the place to be searched and things
to be seized or where the materials are found is addressed to the sound
discretion of the trial court where the application is filed.
SEC. 3. Personal property to be seized. – A search warrant may be issued
for the search and seizure of personal property:
(a) Subject of the offense; (i.e. illegal drugs)
(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. (2a)
As a rule only the personal properties described in the search warrant may be
seized by the authorities.
People vs. Nunez (GR No. 177148, June 30, 2009)
Search Warrant No. 42 specifically authorized the taking of
methamphetamine hydrochloride (shabu) and paraphernalia(s) only. By the
principle of ejusdem generis, the Court explained, where a statute
describes things of a particular class or kind accompanied by words of a
generic character, the generic word will usually be limited to things of a
similar nature with those particularly enumerated, unless there be something
in the context of the statement which would repel such inference. Certainly,
the lady’s wallet, cash, grinder, camera, component, speakers, electric
planer, jigsaw, electric tester, saws, hammer, drill, and bolo were not
encompassed by the word paraphernalia as they bear no relation to the use or
manufacture of drugs. In seizing the said items then, the police officers
exercised their own discretion and determined for themselves which items in
appellant’s residence they believed were “proceeds of the crime” or “means
of committing the offense”. Thus, said search and seizure is absolutely
impermissible.
The Court also declared:
“The purpose of the constitutional requirement that the articles to be seized
be particularly described in the warrant is to limit the things to be taken to
those, and only those particularly described in the search warrant – to leave
the officers of the law with no discretion regarding what articles they
should seize.
SEC. 4. Requisites for issuing search warrant. –
1. There must be an application in writing under oath,
2. There must be probable cause:
1. to be determined by the judge personally
2. After examination under oath or affirmation of the complainant
and the witnesses he may produce
3. It can only be issued in connection with one specific offense,
4. It must particularly describe:
1. the place to be searched which may be anywhere in the
Philippines, and
2. the objects to be seized
There must be an application which must be under oath and based on the
personal knowledge of the applicant or witness he may produce
There must be an affidavit in support of the application. The affidavit must
be based on the personal knowledge of the affiant.
There must be probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce
Meaning of Probable Cause as to issuance of a search warrant
Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and that the objects sought
in connection with the offense are in the place sought to be searched.
(Kho v. Lanzanas, 489 SCRA 445)
Basis of Probable Cause; Personal Knowledge
This probable cause must be shown to be within the personal
knowledge of the complainant or the witnesses he may produce, and not
based on mere hearsay,(Prudente v. Dayrit 180 SCRA 89), in order to
convince the judge, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause.(Alvarez v. CFI
of Tayabas, 64 Phil. 33; Burgos v. Chief of Staff, 133 SCRA 815)
Meaning of knowledge; test is liability for perjury
The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it has been drawn in a manner that
perjury could be charged thereon and the affiant be held liable for damage
caused. (Alvarez v. CFI, supra; People v. Tee 395 SCRA 419)
Certification of non-forum shopping not required
The absence of a certificate of non-forum shopping in the application for
search warrant will not result in the dismissal of the application. The Rules
of Court as amended requires such certification only from initiatory
pleadings, omitting any mention of ‘applications’. (Kenneth Roy savage/K
Angelin Export Trading vs. Taypin supra; cf Washington Distillers, Inc. vs.
CA, 260 SCRA 821 [1996])
Sec. 5
Duty of a Judge before issuing a Warrant
1. He must personally examine:
1. the complainant, and
2. the witnesses the complainant may produce
2. The examination must be:
1. in the form of searching questions and answers,
2. in writing,
3. under oath, and
4. on facts personally known to them
4. The following must be attached to the record
1. The sworn statements of the complainant and his witnesses,
2. The affidavits they submitted
Cases:
1. Searching questions explained
Pendon v. CA, 191 SCRA 429, November 16, 1990
Answer:
The examination must be probing and exhaustive, not merely
routinary or pro forma, if the claimed probable cause is to be established.
The examining magistrate must not simply rehash the contents of the
affidavit but must make his own inquiry on the intent and justification of
the application.
2. Records of deposition/What is important is evidence showing that the
deposition did take place not the attachment of said deposition in the
record
People v. Tee, 395 SCRA 419, January 20, 2003
Facts:
No transcript of the depositions of the witnesses were attached to
the records of the Search Warrant. However, notes of the proceedings
were apparently taken by the Clerk of Court. In the letter of transmittal of
the Clerk of Court, mention is made of “notes” at “pages 7-11,” though said
notes could not be found in the records.
Issue:
Is the warrant valid?
Held:
Yes. The depositions of the witnesses were not attached to the
Search Warrant as required by the Rules of Court. But the purpose of the
Rules in requiring depositions to be taken is to satisfy the examining
magistrate as to the existence of probable cause. The Bill of Rights does not
make it an imperative necessity that depositions be attached to the
records of an application for a search warrant. Hence, said omission is not
necessarily fatal, for as long as there is evidence on the record showing
what testimony was presented.
People v. Mamaril, 420 SCRA 622, January 22, 2004
Facts:
During the trial of accused for possession of marijuana which was
seized by virtue of a search warrant, the clerk of court of the issuing RTC
Branch testified that the available records the court possessed do not
include the transcript of the searching questions and answers made by the
judge in connection with the application.
Held:
Since the clerk of court could not produce the sworn statements showing
that the judge examined them in the form of searching questions and
answers, the search warrant is tainted with illegality by the failure of the
Judge to conform with the essential requisites of taking the depositions in
writing and attaching them to the record. No presumption of regularity can
be invoked in aid of the process when an officer undertakes to justify it.
Difference between Pp v Tee and Pp v. MamarilIn the first, it was shown that there was deposition taken of the testimonies
of the applicant or witnesses but not attached; while in the second, there
was no taking of the testimony or examination.
Insufficiency of Affidavits
Mere affidavits of the complainant and his/her witnesses are not
sufficient. The examining Judge has to take depositions in writing of the
complainant and the witnesses he may produce, and to attach them to the
record. Such written deposition is necessary in order that the Judge may be
able to properly determine the existence or non-existence of the probable
cause, to hold liable for perjury the person giving it, if it will be found later
that his/her declarations are false.(Mata v. Bayona, 128 SCRA 388)
Case:
Prudente v. Dayrit 180 SCRA 69
In his application for search warrant, P/Major Alladin Dimagmaliw stated
that ―he has been informed that Nemesio Prudente ―has in his control
and possession the firearms and explosives described therein, and that he
―has verified the report and found it to be a fact. On the other hand, in his
supporting deposition, P/Lt. Florencio C. Angeles declared that, as a result
of their continuous surveillance for several days, they gathered information
from verified sources that the holders of the said firearms and explosives
are not licensed to possess them. In other words, the applicant and his
witness had no personal knowledge of the facts and circumstances which
became the basis for issuing the questioned search warrant, but acquired
knowledge thereof only through information from other sources or
persons.
While it is true that in his application for search warrant, applicant
P/Major Dimagmaliw stated that he verified the information he had earlier
received that petitioner had, in his possession and custody, the firearms
and explosives described in the application, and that he found it to be a
fact, yet there is nothing in the record to show or indicate how and when
said applicant verified the earlier information acquired by him as to justify
his conclusion that he found such information to be a fact. He might have
clarified this point if there had been searching questions and answers, but
there were none. In fact, the records yield no questions and answers,
whether searching or not, vis-à-vis the said applicant.
What the records show is the deposition of witness, P/Lt. Angeles, as
the only support to P/Major Dimagmaliw’s application, and the said
deposition is based on hearsay. For it avers that they (presumably, the
police authorities) had conducted continuous surveillance for several days
of the suspected premises and, as a result thereof, they ―gathered
information from verified sources‖ that the holders of the subject firearms
and explosives are not licensed to possess them.
Factor that may be considered in the determination of probable cause-
Time of making the affidavit or application in relation to time of
observation of alleged offense and issuance of the warrantThe Supreme Court observed:
(2) Such statement as to the time of the alleged offense must be
clear and definite and must not be too remote from the time of the making
of the affidavit and issuance of the search warrant.
(3) There is no rigid rule for determining whether the stated time of
observation of the offense is too remote from the time when the affidavit is
made or the search warrant issued but, generally speaking, a lapse of time
of less than three weeks will be held not to invalidate the search warrant,
while a lapse of four weeks will be held to be so.
A good and practical rule of thumb to measure the nearness of time
given in the affidavit as to the date of the alleged offense, and the time of
making the affidavit is thus expressed: The nearer the time at which the
observation of the offense is alleged to have been made, the more
reasonable the conclusion of establishment of probable cause.(Asian
Surety and Insurance Co. v. Herrera 54 SCRA 312)
Effect of lack of probable cause
People v. Salanguit, 356 SCRA 683, April 19, 2001
Facts:
The Search Warrant issued by the judge states:
“It appearing to the satisfaction of the undersigned after
examining under oath SR. INSP. Rodolfo Aguilar, PNP and his witness SPO1
Edmund Badua, PNP, that there is probable cause to believe that Robert
Salanguit has in his possession and control in his premises Binhagan St., San
Jose, Quezon City as shown in Annex “A”, the properties to wit:
UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA.”
Issue:
Considering that during the deposition-taking, no witness testified on
anything about drug paraphernalia, should the warrant be nullified for
having been issued without probable cause?
Held:
No. It would be a drastic remedy indeed if a warrant, which was
issued on probable cause and particularly describing the items to be seized
on the basis thereof, is to be invalidated in toto because the judge erred in
authorizing a search for other items not supported by the evidence.
Probable cause to arrest and probable cause to search
Webb vs. De Leon, 247 SCRA 65 further explained, thus:
“.... each requires a showing of probabilities as to somewhat different facts
and circumstances, and thus one can exist without the other. In search cases,
two conclusions must be supported by substantial evidence; that the items
sought are in fact seizable by virtue of being connected to criminal activity,
and that the items will be found in the place to be searched. It is not also
necessary that a particular person be implicated. By comparison, in arrest
cases there must be probable cause that a crime was committed and that
the person to be arrested has committed it, which of course can exist
without any showing that evidence of the crime will be found at the
premises under person’s control. Worthy of note, our Rules of Court do not
provide for a similar procedure to be followed in the issuance of a warrant of
arrest and search warrants....”
Requisite of particular description of the place or the person to be
searched and the things to be seizedReason for required particularity in the description
It is essential, that it particularly describes the place to be searched,
the manifest intention being that the search be confined strictly to the place
also described. (Burgos v. Chief of Staff, supra; Garaygay v. People, 335
SCRA 272). In other words, the prevent the searching officer from
exercising his discretion on where and what to search.
Particularity of description when warrant is directed against a person-
What is important is the description sufficient to identify the subject; The
name is important because it is the best description to identify; but even
if name is erroneous or name is unknown, there must be sufficient
description.
The standard for determining the legality of a warrant directed against a
person is whether the person has been sufficiently described with
particularity sufficient to identify him with reasonable certainty. Even if
the name is unknown or erroneously written, the description of the
person with certainty to identify him and set him apart from others is
enough to lend validity to the warrant (US v Ferrone, 438 F. 2d 381, 3d Cir.
1971). Nowhere in Section 4, Rule 126 or any other provision of the Revised
Rules of Criminal Procedure is it required that the search warrant must
name the person who occupies the described premises. (Quelnan vs.
People, 526 SCRA 653, July 6, 2007).
The failure to correctly state in the search warrant the first name of accused
does not invalidate the warrant provided there is additional description that
would sufficiently enable the police officers to locate the petitioner. What is
prohibited is a warrant against an unnamed party, and not one which
contains a description personae that will enable the officer to identify the
accused without difficulty. (Nala vs. Barroso, Jr., GR 153087, Aug.7, 2003)
If name is not known, then a fictitious name should be used coupled with
sufficient description of the person.
John Doe warrant
A John Doe warrant which does not name the person subject of the same,
is the exception rather than the rule. Hence, in one case a warrant was
voided to the extent that it was issued against fifty (50) John Does none of
which could be identified by the witnesses (Pangandaman vs. Casar, 159
SCRA 599).
While the rule requires it necessary to express the name or give some
description of a party subject of the warrant, the principle does not prevent
the issue and service of a warrant against a party whose name is unknown.
In such a case, the best possible description of the person is to be given in
the warrant; but it must be sufficient to indicate clearly on whom it is to be
served, by stating his occupation, his personal appearance and
peculiarities, the place of his residence or other circumstances by which he
can be identified. The description must be sufficient to indicate clearly the
proper person upon whom the warrant is to be served.
2. Particularity of description when subject of search is a place only and
not for a person- Description of the place is vital not description of the
occupant
Where the search warrant is issued for the search of a specifically described
premises only and not for the search of a person, the failure to name the
owner or occupant of such property in the affidavit and search warrant
does not invalidate the warrant; where the name of the owner of the
premises sought to be searched is incorrectly inserted in the warrant, it is
not a fatal defect if the legal description of the premises to be searched is
otherwise correct so that no discretion is left to the officer making the
search as to the place to be searched. (Quenlan vs. People, GR No. 166061,
July 6, 2007).
Rule on sufficiency of the description of the placeThe long standing rule is that a description of the place to be searched is
sufficient if the officer with the warrant can, with reasonable effort,
ascertain and identify the place intended and distinguish it from other
places in the community. Any designation or description that points out
the place to the exclusion of all others, and on inquiry leads the officers
unerringly to it, satisfies the constitutional requirement.
3. Particularity of description of things to be seized-
Tests to Determine Particularity
A search warrant may be said to particularly describe the things to be
seized:
1)
When the description therein is as specific as the
circumstances will ordinarily allow;(People v. Rubio, supra;
Al-Ghoul v. CA, supra) or
2)
When the description expresses a conclusion of fact – not of
law by which the warrant officer may be guided in making
the search and seizure;(Id. Dissent of J. Abad Santos) or
3)
When the things described are limited to those which bear
direct relation to the offense for which the warrant is being
issued.(Rules of Court, R 126, Sec. 2).
Thus, if the articles desired to be seized have any direct relation to an
offense committed, the applicant must necessarily have some evidence,
other than those articles, to prove the said offense; and the articles
subject of search and seizure should come in handy merely to strengthen
such evidence. (Uy and Unifish Packing Corp. v. BIR, 344 SCRA 36).
Ownership of property seized not required, only control and possessionThe law does not require that the property to be seized should be owned by
the person against whom the search warrant is directed. It is sufficient that
the person against whom the swarrant is directed has control and
possession of the property sought to be seized (Yao v. People, G.R. No.
168306, June 19, 2007).
Seizure of objects not described in the warrant
People v. Go, 411 SCRA 81, September 12, 2003
Question:
In the execution of a search warrant for the seizure of Dangerous
Drugs, may the police also seize money as well as a car which, though not
described in the warrant, they believe to be “proceeds of the crime” or
“means of committing the offense”?
Answer:
No. In seizing the said items then, the police officers were exercising
their own discretion and determining for themselves which items in
appellant’s residence they believed were “proceeds of the crime” or
“means of committing the offense.” This is absolutely impermissible. The
constitutional requirement that the articles to be seized be particularly
described in the warrant is to limit the things to be seized to those, and
only those, particularly described in the search warrant – to leave the
officers of law with no discretion regarding what articles they should seize.
A search warrant is not a sweeping authority empowering a raiding party to
undertake a fishing expedition to seize and confiscate any and all kinds of
evidence or articles relating to a crime.
Note: Money and car are not illegal per se hence, the seizure cannot also
be justified under warrantless search of evidence in plain view.
People v. Go, 411 SCRA 81, September 12, 2003
Facts:
In the execution of a search warrant for the seizure of Dangerous
Drugs, the police also seized assorted documents, passports, bankbooks,
checks, check writer, typewriter, dry seals and stamp pads as “seizure of
evidence in plain view.”
Issue:
Can the seizure be justified under the plain view doctrine?
Held:
No. Under the plain view doctrine, one requisite is that it is
immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure. Measured
against this standard, it is readily apparent that the seizure of the items
does not fall within the “plain view” exception. The illegal character of the
objects was not immediately apparent. Rather, the suspicions of the
policemen appear to have been aroused by the presence of the numerous
passports and immigration documents which they discovered in the course
of their search. After they confirmed that accused was not operating a
travel agency, they concluded that his possession of said documents and
passports was illegal even though they could not identify the alleged law
supposedly violated.
The search warrant shall be issued in connection with but one offense.
Specific offense must be charged and not violations of codes
Indeed, the same were issued upon applications stating that the natural
and juridical persons therein named had committed a "violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised
Penal Code." In other words, no specific offense had been alleged in said
applications. The averments thereof with respect to the offense committed
were abstract. As a consequence, it was impossible for the judges who
issued the warrants to have found the existence of probable cause, for the
same presupposes the introduction of competent proof that the party
against whom it is sought has performed particular acts, or committed
specific omissions, violating a given provision of our criminal laws. As a
matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be a legal heresy, of
the highest order, to convict anybody of a "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code,"
— as alleged in the aforementioned applications — without reference to
any determinate provision of said laws or codes. (Stonehill v. Diokno, 20
SCRA 383)
Cases:
6. One-Offense Rule
a. Warrant for three (3) offenses
Vallejo v. CA, 427 SCRA 658, April 14, 2004
Facts:
The opening statement of Search Warrant No. 2000-03 reads:
“It appearing to the satisfaction of the undersigned after
examining under oath NBI Head Agent Franklin M. Javier and his witness
that there are reasonable grounds to believe that Falsification of Land Titles
under Art. 171, Revised Penal Code, Article 213, RPC, and R.A. 3019 (AntiGraft) has been committed or is about to be committed and that there are
good and sufficient reasons to believe that the Registry of Deeds, Provincial
Capitol, Alibagu, Ilagan, Isabela has in its possession and control...”
Several counts of the same offense
Columbia Pictures v. CA, 261 SCRA 144, August 28, 1996
Facts:
The search warrant issued for violation of P.D. 49 directed the seizure,
among others, of pirated video-tapes.
Issue:
Considering that there are as many offenses of infringement as there
are rights protected in the various movie titles involved, does the warrant
violate the rule that a search warrant must be issued only in connection
with one specific offense?
Held:
No. The search warrant itself indicates it was issued for violation of
Sec. 56, P.D. 49 only. The specifications therein merely refer to the titles of
the copyrighted motion pictures belonging to Columbia which defendants
were in possession for sale or lease in violation of P.D. 49. That there were
several counts of the offense of copyright infringement and the search
warrant uncovered several contraband items in the form of pirated video
tapes is not to be confused with the number of offenses charged.
Implementation/Enforcement of a Search Warrant
Jurisprudence discloses that the reasonableness of both the seizure and the
search does not exclusively refer to the manner by which the warrant
was procured. It refers also to the reasonableness of the manner the
warrant was executed including the time and place of its execution.
Extent of the search
It is also required for a search to be reasonable that the object of the search
must be the one properly described in the warrant. Marron v. US, 275 US
192, 48 S.Ct., 1927, in holding that officers cannot seize property not
specified in the warrant, found that a search warrant describing only
intoxicating liquors should not include ledgers and bills of account within
the searched premises.
Where the warrant is clear and limited only to a particular place like a store
described in the warrant the search does not extend to the apartment units
located at the back of the store even if the sketch submitted to the judge
indlude the apartments. It is neither fair nor licit to allow officers to search a
place not described in the warrant because the place not described is what
the officers had in mind (People v. CA, 291 SCRA 400).
A warrant which authorizes the search of weapons includes the authority to
open closets, drawers, chests and containers in which the weapons might be
found. These containers must give way to the interest in the prompt and
efficient completion of the task when a legitimate search is underway and
when its purpose and limits have been precisely defined. If the warrant is to
search a vehicle, every part of that vehicle which may contain the object to
be seized may be searched. In other words, the lawful search of the premises
particularly described extends to the areas in which the object may be found
(US v. Ross, 456 US 798).
It has been held that when a search warrant authorizes the search of a place
particularly described, a justified search would include all the things
attached to or annexed to the land if the place described be land (US v.
Meyer, 417 F. 2d 1020, 8th Cir. 1969). Courts have also generally allowed a
search of vehicles owned or controlled by the owner of the premises and at
the same time found in the premises (US v. Percival, 756 F. 2d 600 7 th Cir.
1985).
Search of third persons not named in the warrant
A search warrant for a place of a named owner is being executed and you
just happened to be in the premises searched, can you be also searched?
The prevailing American general rule is that a warrant to search a place does
not extend to the authority to search all persons in the place because the
police have no probable cause to search and detain a person not
particularized in the warrant. Thus, in Ybarra v. Illinois (444 US 85, 100 S.
Ct., 338 62 L. Ed. 2d 238 1979), the US Supreme Court struck down as
invalid a search of a mere patron in a bar.
There have been cases where the Court upheld the search of things
belonging to third persons while in the place validly searched as when
the officers had no knowledge that the same belongs to a third person
(Carman v. State, 602 P. 2d 1255, Alaska 1979).
More leeway has also been allowed in searches of contraband like
narcotics. Some cases authorized the temporary detention of a person in
the premises searched while the search was underway to prevent flight
if incriminating evidence is found, to minimize risks to the officer and
destruction of the evidence. The search of narcotics often result to violence
and a scrambling for the destruction or concealment of incriminating
evidence.
SEC. 7. Right to break door or window to effect search.
The “Knock and announce” principle.
Right to Break Door or Window
1. Requisites for an officer to break open any outer or inner door or
window of a house:
1. The officer gives notice of his purpose and authority, and
2. He is refused admittance to the place of directed search
2. Authorized acts upon breaking in:
1. The officer may execute the warrant, or
2. He may liberate:
1. himself, or
2. any person lawfully aiding him when unlawfully detained
therein
Being armed with a warrant does not justify outright entry or barging into
the place to be searched. An officer should knock, introduce himself and
announce his purpose and only in exceptional cases may he forego the
same like when his safety is in danger of being jeopardized or when
evidence is about to be destroyed (Wilson v. Layne, 526 US 603, 143 L. Ed.
2d 818 119 S. Ct. 1692 1926).
Cases:
1. When to break door or window
People v. Huang Zhen Hua, 439 SCRA 350, September 29, 2004
Question:
When may the authorities armed with a search warrant break open
any door and enter without first knocking or announcing their presence?
Answer:
In order to justify a “no-knock” entry, the police must have a
reasonable suspicion that knocking and announcing their presence, under
the particular circumstances, would be dangerous or futile, or that it would
inhibit the effective investigation of the crime by, for example, allowing the
destruction of evidence. This standard – as opposed to a probable-cause
requirement—strikes the appropriate balance between the legitimate law
enforcement concerns at issue in the execution of search warrants and the
individual privacy interest affected by no-knock entries.
What constitutes breaking includes the lifting of a latch, turning a
door knob, unlocking a chain or hasp, removing a prop to or pushing open
a closed door of entrance to the house, even a closed screen door.
SEC. 8. Search of house, room, or premises to be made in presence of
two witnesses in the absence of occupant.
Who must be Present during a Search
1. The lawful occupant of the house, room or premises, or
2. Any member of his family, or
3. In their absence – [2] witnesses of sufficient age and discretion residing
in the same locality
Cases:
1. Presence of occupants
People v. del Castillo, 439 SCRA 601, September 30, 2004
Facts:
When the police searched the house, they ordered the occupants to
remain seated in the sala. The police, however, were accompanied by
barangay tanods who acted as witnesses when the search was going on in
the upper and lower portions of the house.
Issue:
Was there sufficient compliance with Sec. 8, Rule 126 of the Rules of
Court?
Held:
No. The search of the house must be done in the presence of the
lawful occupants and it is only in the absence of the former that 2
witnesses of sufficient age and discretion residing in the same locality may
be called upon to witness the search. While accused and the other
occupants of the house were present during the search, they were not
allowed to actually witness the search of the premises. They should be the
ones that should have accompanied the policemen while the search was
being done and not substituted by the barangay tanods in their stead. Such
a procedure, whereby the witnesses prescribed by law are prevented from
actually observing and monitoring the search of the premises, violates both
the spirit and the letter of the law.
QUINTERO vs. NBI, 162 SCRA 467
SEC. 9. Time of making search. – The warrant must direct that it be served
in the day time, 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. (8)
Does the validity of a search warrant prescribe?
SEC. 10. Validity of search warrant. – A search warrant shall be valid for ten
(10) days from its date. Thereafter, it shall be void. (9a)
Warrant of search v. warrant of arrest re lifetimeA search warrant has a lifetime only of ten (10) days. Compare that with the
lifetime of a warrant of arrest under Section 4 of Rule 113. Under Rule 113,
the 10-day period does not mean to say that the warrant of arrest is only
good for 10 days. It is only a directive that you will enforce it within 10
days. If you cannot arrest, keep it and try to arrest the accused in the future.
But a search warrant, is different. After 10 days from its date, it shall be
void.
Does this mean to say that you can use a search warrant everyday for 10
days?
NO. You can use it once for 10 days. But it does not mean you can use it
everyday or for the next 10 days.
Multiple service of warrant not allowed, as a ruleMUSTANG LUMBER, INC. vs. COURT OF APPEALS, 257 SCRA 430
[1996]
FACTS: On April 3, 1990, a search warrant was issued and a team of DENR
operatives searched the premises of Mustang Lumber in Valenzuela Metro
Manila on the same date. Not being able to complete the search on said date
it was continued the next day.
Is the search on April 4 a warrantless search?
HELD: “We also affirm the rulings of both the trial court and the Court of
Appeals that the search on April 4,1990 was a continuation of the search on
April 3, 1990 done under and by virtue of the search warrant issued on April
3,1990. Under (section 9, Rule 126 of) the Rules of Court, a search warrant
has a lifetime of ten days. Hence, it could be served at any time within the
said period, and if its object or purpose cannot be accomplished in one
day, the same may be continued under the same warrant the following
day, provided it is still within the ten day period.”
Duties of the Searching Officer/s after enforcement of the warrant
SEC. 11. Receipt for the property seized.
Obligation of Officer Seizing Property under a Warrant
1. He must give a detailed receipt for the property seized
2. The receipt:
1. must be given to the lawful occupant of the premises in whose
presence the search and seizure were made, or
2. in the absence of such occupant, must be left in the place in which
the seized property is found, in the presence of at least 2 witnesses of
sufficient age and discretion residing in the same locality
Cases:
1. Witness to the receipt
Quintero v. NBI, 162 SCRA 469, June 23, 1988
Issue:
Where the occupants of the place to be searched were not actually
present during the search, may a member of the searching party sign the
receipt?
Held:
No. The procedure is irregular for failure to comply with Sec. 11, Rule
126 of the Rules of Court. The receipt issued by the seizing party in the case
at bar showed that it was signed by a witness, Sgt. Ignacio Veracruz. This
person was a policeman from the Manila Metropolitan Police, who
accompanied the agents of NBI during the conduct of the search. This
requirement of the Rules was rendered nugatory, when the one who
attested to the receipt from the raiding party was himself a member of the
raiding party.
Signing of receipt by accused
People v. del Castillo, 439 SCRA 601, September 30, 2004
Facts:
After the house where accused stayed was searched by virtue of a
warrant, the police asked her to sign an inventory of the articles seized,
which included a quantity of “shabu”.
Issue:
Considering that accused was not assisted by counsel, is the receipt
admissible in evidence?
Held:
No. Accused was the victim of a clever ruse to make him sign the
alleged receipt which in effect is an extra-judicial confession of the
commission of the offense. Indeed it is unusual for accused to be made to
sign receipts for what were taken from him. It is the police officers who
confiscated the same who should have signed such receipts. No doubt this
is a violation of the constitutional right of the accused to remain silent
whereby he was made to admit the commission of the offense without
informing him of his right. Such a confession obtained in violation of the
Constitution is inadmissible in evidence.
SEC. 12. Delivery of property and inventory thereof to court; return
and proceedings thereon.
Duties after Issuance of Warrant
1. After Seizure – the officer must forthwith deliver to the judge who issued
the warrant:
1. the property seized,
2. together with a true inventory thereof duly verified under oath
2. Duty of the judge after issuance of search warrant – 10 days after
issuance of the search warrant, he shall ascertain if the return has been
made:
1. if no return has been made – the judge shall summon the person
to whom the warrant was issued and require him to explain why
2. if the return has been made – the judge shall:
1. ascertain whether a receipt has been issued for the items
seized [Sec. 11],
2. require that the property seized be delivered to him, and
3. see to it that the property seized, together with a true
inventory duly verified under oath, be delivered to him
3. Duty of the custodian of the log book on search warrants:
1. He shall file and keep the return of the search warrant,
2. He shall enter in the log book:
1. the date of return,
2. the result, and
3. other actions of the judge
4. Consequence of violation of Sec. 12:
It shall constitute contempt of court
Cases:
1. Custody of issuing court
People v. del Castillo, 439 SCRA 601, September 30, 2004
Facts:
After the police officers seized the “shabu” by virtue of a search
warrant, they delivered it to the PNP Crime Laboratory for examination,
instead of the court issuing the search warrant.
Issue:
Is the procedure proper?
Held:
No. Trial courts are known to take judicial notice of the practice of
the police in retaining possession of confiscated specimens suspected of
being marijuana by immediately forwarding them to the NBI for
examination before filing a case with the city prosecutor’s office. The mere
tolerance by trial courts of such a practice does not make it right. This
violates the mandatory requirements of the law and defeats the very
purpose for which they were enacted. Speculations as to the probability
of tampering with the evidence cannot then be avoided.
The case of Yee Sue Koy vs. Almeda (70 Phil 141) is cited to justify
retention by the police and the NBI of the custody of the allegedly
confiscated specimens. In said decision, the SC recognized the fact that the
objects seized were retained by the agents of the Anti-Usury Board, instead
of being turned over to the Justice of the Peace. However, the SC also held
that it was “for the reason that the custody of said agents is the custody of
the issuing officer or court, the retention having been approved by the
latter.”
Thus, approval by the court which issued the search warrant is
necessary for the retention of the property seized by the police officers;
and only then will their custody be considered custody of the court.
Absent such approval, the police officers have no authority to retain
possession of the marijuana and more so, to deliver the property to
another agency, like the NBI.
WASHINGTON DISTILLERS INC. vs. COURT OF APPEALS
260 SCRA 821 [1996]
FACTS: This involves a controversy between Washington Distillers and La
Tondeña Distillers. Obviously, their products are spirits and wine.
According to La Tondeña Distillers, the bottles that Washington Distillers
uses for their products are actually La Tondeña bottles. They buy empty
bottles, clean them, and use them to serve their products. La Tondeña
complained because those are their bottles.
One of the issues here is whether you can still claim the bottles, considering
that they have been paid for when bought by customers.
So La Tondeña decided to apply for a search warrant to raid the premises of
Washington Distillers to recover all these bottles. And there was really a raid
and so many bottles where taken from the premises of Washington
Distillers. All those bottles were turned over to La Tondeña.
Now, Washington Distillers questioned the act of turning over the bottles to
La Tondeña questioning the ownership of said bottles.
HELD: Washington Distillers was sustained. If the issue is ownership
there should be another case for replevin. Or,if the bottles are in the
possession of the government, the La Tondeña should file action for
interpleader to determine who really owns the bottles. But you cannot
use a mere search warrant to resolve the issue of ownership. A search
warrant is only to get the property, but it does not have the same effect as a
writ of replevin.
“A search warrant proceeding is not a criminal action, much less a civil
action. It is a special criminal process, the order of issuance of which
cannot and does not adjudicate the permanent status or character of the
seized property. It cannot therefore be resorted to, as was done here by La
Tondeña Distillers, as a means of acquiring property or of settling a dispute
over the same. The proper remedy is for private respondent or for the
Government itself, assuming the role of a stakeholder, to bring the
appropriate action.”
WARRANTLESS SEARCH AND SEIZURE
Valid warrantless searches
People v. Gonzales, 365 SCRA 17, September 12, 2001
Question:
In what instances may a valid search without a warrant be
conducted?
Answer:
The constitutional proscription against warrantless searches and
seizures admits of certain legal and judicial exceptions, as follows: (1)
warrantless search incidental to a lawful arrest recognized under Sec. 12,
Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure
of evidence in plain view; (3) search of a moving vehicle; (4) consented
warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent
and emergency circumstances.
INSTANCES OF VALID WARRANTLESS SEARCH
1.
2.
3.
4.
5.
6.
7.
8.
9.
Search incidental to a valid arrest
Stop and Frisk Situation;
Search of moving vehicles;
Evidence in plain view;
Customs searches;
Consented search;
Exigent searches or searches during emergency circumstances
Search of vessels and aircrafts; and
Inspection of buildings and other premises for the enforcement of
fire, sanitary and building regulations. (Valeroso v. CA, GR No.
164815, Sept. 3, 2009)
SEC. 13. Search incident to lawful arrest.
Search Incident to a Lawful Arrest
1. What may be done to a person lawfully arrested:
He may be searched without a search warrant
2. What he may be searched for or scope of the search:
1. Dangerous weapons, or
2. Anything which may have been used or
3. constitute proof in the commission of an offense
2 reasons for allowing the warrantless search:
1. To prevent the destruction of evidence, and
2. To protect the arresting officer from physical harm
Requisites:
a. The arrest is valid;
b. The search is contemporaneous to the arrest; and
c. It is within the permissible area
No valid arrest means no valid search and seizure.
Factors to be taken into consideration:
a. Subject and scope of search – the person of the suspect and the
premises within his/her immediate control and the things to be
seized are limited to “dangerous weapons” or “anything which may
be used as proof of the commission of the offense”;
b. Time- must be contemporaneous to the lawful arrest or the search
must be conducted at about the time of the arrest or immediately
thereafter;
c. Place – at the place of arrest
General rule: Valid arrest must precede the search
People v. Chua, 396 SCRA 657, February 4, 2003
Facts:
At 10:00 o’clock in the evening, policemen received a report that
accused was about to deliver drugs that night at Thunder Inn Hotel in
Angeles City. Immediately, the police sent a team to the place. At 11:45
that evening, accused arrived and parked his car near the entrance of the
hotel, then alighted carrying a sealed Zest-O juice box. The police accosted
him. The box accused carried contained 2 small transparent plastic bags
with almost 2 kilos of “shabu” and bullets for .22 caliber firearm.
Issue:
Was there a warrantless valid search and seizure?
Held:
No. The search does not fall under the “search incident to a lawful
arrest” exception. For the exception to apply, there must be a lawful arrest
which can only occur if the person to be arrested has committed, is actually
committing or about to commit a crime in the presence of the arresting
officers. In this case, there was no overt manifestation that accused was
committing a crime. In “in flagrante delicto” arrests, “reliable information”
alone, absent any act of a felonious enterprise, in the presence of the
arresting officer, is not sufficient to constitute probable cause that could
justify the arrest. Similarly, there was no valid “stop-and-frisk”search. For
this exception to apply, the search and seizure must precede the arrest. In
this case, accused was first arrested before he was searched and the
alleged illegal items found in his possession.
Exception
Recent Court pronouncements hold that in searches incident to a lawful
arrest, the arrest must precede the search; generally the process cannot be
reversed. Nevertheless, a search substantially contemporaneous with an
arrest can precede the arrest if the police have probable cause to make
the arrest at the outset of the search. Thus, we have to determine first
whether the police officers had probable cause to arrest appellant. If what
prompted the police to apprehend the accused, even without a warrant,
was the tip given by the informant that appellant would arrive carrying
shabu this circumstance gives rise to another question of whether that
information, by itself, is sufficient probable cause to effect a valid
warrantless arrest. The long standing rule in this jurisdiction is that “reliable
information” alone is not sufficient to justify a warrantless arrest. The rule
requires, in addition, that the accused perform some overt act that would
indicate that he has committed, is actually committing, or is attempting to
commit an offense. There is no cogent reason to depart from this wellestablished doctrine (People vs. Racho, GR No. 186529, August 3, 2010).
Scope of the search
The Court has however, ruled on several occasions that: “x x x When an
arrest is made, it is reasonable for the arresting officer to search the person
arrested in order to remove any weapon that the latter might use in order
to resist arrest or effect his escape. Otherwise, the officer’s safety might
well be endangered, and the arrest itself frustrated.
In addition, it is entirely reasonable for the arresting officer to search for
and seize any evidence on the arrestee’s person in order to prevent its
concealment or destruction. Moreover, in lawful arrests, it becomes both
the duty and the right of the arresting officer to conduct a warrantless
search not only on the person of the suspect but also within the
permissible are within the latter’s reach x x x a vaild arrest allows the
seizure of evidence or dangerous weapons either on the person of the one
arrested or within the area of his immediate control. The phrase “within
the area of his immediate control” means the area from within which he
might gain possession of a weapon or destructible evidence. A gun on a
table or in the drawer in front of the person arrested can be as dangerous
to the arresting officer as one concealed in the clothing of the person
arrested x x x” (People v. Leangsiri, 252 SCRA 213; People v. Cubcubin, Jr.,
360 SCRA 690; People v. Estella, 395 SCRA 553; Valeroso v. CA GR No.
164815, Sept. 3, 2009).
Thus, when the person arrested was brought out of the room with his
hands tied, a cabinet which is locked could no longer be considered as part
of “an area within his immediate control” because there was no way for
him to take any weapon or to destroy any evidence that could be used
against him (Valeroso v. CA, supra).
A search and seizure incident to a lawful arrest is not limited to things
related to the reason for the arrest.
If for instance, a person is legally arrested for illegal possession of drugs,
the search is not confined to things used in the commission of the crime. To
protect the arresting officer, the search extends to weapons like a gun or a
knife with no actual connection to the crime of illegal possession of the
drugs. If in the course of the search, evidence is found constituting proof of
another offense, like an illegally possessed weapon, it is submitted that the
phraseology of the rule does not prevent the seizure of the evidence. This is
subject to the condition that it is within the scope or subject of the search
as incident to a lawful arrest.
Sec. 13 of Rule 126 allows the warrantless search of the person “lawfully
arrested” as an incident to a lawful arrest in a manner similar to American
rulings allowing a full search of the body of the person. The cases of US v.
Robinson (414 US 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 1973) and Gustafson
v. Florida, (414 US 260, 94 S. Ct. 488, 38 L. Ed. 2d 456, 1973), allowed the
search of the cigarette case of a person arrested for traffic violation. Illegal
drugs were discovered in both instances. A full search means searching
any property associated with the arrestee’s body like clothing, jewelry,
watches and others attached to the person in a permanent or semipermanent capacity. The search includes inspecting the clothing of the
person arrested for bloodstains, fingerprints or even serial numbers (State
v. Smith, 203 N.W. 2d 348 Minn. 1972; Parker v. State, 544 S.W. 2d 149 Tex.
Crim. App. 1976)
STOP AND FRISK RULE
The Terry doctrine is of two parts: the “stop” and the “frisk”.
A valid “stop” by an officer requires that he has a reasonable and
articulable belief that criminal activity has happened or is about to happen.
The “frisk” made after the “stop” must be done because of a reasonable
belief that the person stopped is in possession of a weapon that will pose
a danger to the officer and others. The “frisk” must be a mere pat down
outside the person’s outer garment and not unreasonably intrusive.
Test for both the stop and frisk is not existence of probable cause as no
full arrest is made, but reasonable beliefThe test of the conduct of an officer under similar circumstances, was not
the existence of probable cause because no full arrest is made. The test
instead was reasonable belief (called a genuine reason in a Philippine
decision). Because of the important interest in protecting the safety of
police officers, the Court held that a law enforcement officer has the
authority to stop someone and do a quick surface search of their outer
clothing for weapons. This is allowed if the officer has a reasonable belief
based on a genuine reason and in the light of the officer’s experience and
the surrounding circumstances, that a crime has either taken place or is
about to take place and the person stopped is armed and dangerous. This
reasonable suspicion must be based on “specific and articulable facts”
and not merely upon the officer’s bare suspicion or hunch.
Terry emphasized that a reasonable belief for making a stop must also be
followed by a frisk which is equally reasonable which means it should not
be broader than is necessary to find weapons in the person briefly
stopped. The ruling that probable cause is not required in a stop and frisk
situation is Terry’s significant contribution to jurisprudence.
A mere deep suspicion by an experienced officer that criminal activity could
take place is not sufficient for the application of the Terry doctrine. He must
support his conclusion by particularizing the acts that led to the conclusion.
Dual purpose of the rule
A "stop-and-frisk" serves a two-fold interest: (1) the general interest of
effective crime prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances and in an
appropriate manner, approach and stop a person for purposes of
investigating possible criminal behavior even without probable cause; and
(2) the more pressing interest of safety and self-preservation which permit
the police officer to take steps to frisk to assure himself that the person
with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer” (Malacat v. CA,
G.R. No. 123595, Dec. 12, 1997).
Illustrations:
In Esquillo v. People GR No. 182010, August 25, 2010, the police officers
were on a surveillance operation as part of their law enforcement efforts
when PO1 Cruz saw petitioner placing a plastic sachet containing white
crystalline substance into her cigarette case. Given his training as a law
enforcement officer, it was instinctive on his part to be drawn to curiosity
and to approach her. That petitioner reacted by attempting to flee after he
introduced himself as a police officer and inquired about the contents of
the plastic sachet all the more pricked his curiosity.
Terry Search vs. Search incident to a lawful arrest
Though both result in a warrantless search, they differ in terms of the (1)
requisite quantum of proof before they may be validly effected and (2) in
their allowable scope (Malacat v. CA, 283 SCRA 159; People vs. Chua, 396
SCRA 660).
Required quantum- A Terry stop is not an arrest. The Terry doctrine as
originally formulated, does not require a probable cause and the person is
not under a full scale arrest but under a mere brief, investigative “stop”
followed by a surface, non-intrusive pat down of one’s outer garments to
determine the presence of weapons. A search incident to a lawful arrest
presupposes the existence of a probable cause for the arrest, where the
person is taken under the custody of the arresting officer.
Scope of search- The search is of the person and the area within his
control. It is thus, more intrusive and is conducted not only for the purpose
of finding weapons but also for the purpose of searching for evidence, any
fruit of a crime or of things which may provide the person arrested with the
means to escape.
A Terry search has a limited scope compared to a full scale arrest and
search. The Terry doctrine therefore, is not judged by the more stringent
requirement of probable cause which concededly applies only to an arrest
and a search. What applies in a Terry stop and frisk is the reasonableness of
the act of the officer. This “reasonable standard” while not sufficient to
validate an arrest and search, justifies a terry stop and frisk.
As a general rule, a search and seizure must be carried through with judicial
warrant, otherwise, such search and seizure constitutes derogation of a
constitutional right (Epie, Jr. v. Ulat-Marredo, 518 SCRA 641, March 22,
2007).
SEARCH OF MOVING VEHICLES
This is justified on the ground that the mobility of motor vehicles makes it
possible for the vehicle to be searched to move out of the locality or
jurisdiction in which the warrant must be sought.
“It is not practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be
sought” (People vs. Tuazon, 532 SCRA 152, Sept. 3, 2007).
Probable cause requiredWhen a vehicle is flagged down and subjected to an extensive search,
such a warrantless search has been held to be valid as long as the officers
conducting the search have reasonable or probable cause to believe prior
to the search that they would find the instrumentality or evidence
pertaining to a crime, in the vehicle to be searched (ibid).
“The scope of a warrantless search of an automobile thus is not defined by
the nature of the container in which the contraband is secreted. Rather, it
is defined by the object of the search and the places in which there is
probable cause to believe that it may be found. Just as probable cause to
believe that a stolen lawnmower may be found in a garage will not support
a warrant to search an upstairs bedroom, probable cause to believe that
undocumented aliens are being transported in a van will not justify a
warrantless search of a suitcase. Probable cause to believe that a container
placed in the trunk of a taxi contains contraband or evidence does not
justify a search of the entire cab’(US v. Ross, 456 US 798, 824, 102 S.Ct.
2157, 2172, 72 L. Ed. 2d. 572).
Checkpoints
The “stop and search” without warrant at a military or police checkpoint
may either be:
a) A mere routine inspection; or
b) An extensive search
Distinction between the stop and the search-
Probable cause not required for the “stop” and “visual search”A stop is proper even if the standards of probable cause are not satisfied
as long as it is called for under the balancing of interest principle.
The “stop” however, is a justification only for a limited search, which may
be less intrusive, or the so-called “visual search” but not an extensive
search.
Probable cause required for the extensive searchThe more intrusive search or an extensive search without warrant may only
be resorted to if the officers conducting the search had reasonable or
probable cause to believe before the search that either the motorist was
a law offender or that they would find the instrumentality or evidence
pertaining to the commission of a crime in the vehicle to be searched. The
existence of probable cause justifying the warrantless search is determined
by the facts of the case. (Aniag vs. Comelec 237 SCRA 424) This is the
second aspect of the so-called “stop and search” principle. (People vs.
Barros, 231 SCRA 557)
Instances of routine inspection or search
In Caballes vs. Court of Appeals, G.R. No. 136292, January 15, 2002, the
Supreme Court summarized the instances of routine search, thus:
1. Where the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair gounds;
2. Simply looks into the vehicle;
3. Flashes a light therein without opening the car’s doors;
4. Where the occupants are not subject to a physical or body search;
5. Where the inspection of the vehicles is limited to a visual
search or visual inspection; and
6. Where the routine check is conducted in a fixed area.
EVIDENCE IN PLAIN VIEW
Elements of a valid search of evidence in plain view
1. The law enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which he can
view a particular area;
2. Inadvertent discovery of the evidence which is in plain view; and
3. It is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband or otherwise subject to
seizure and in this regard only probable cause and not absolute
certainty is required (People vs. Musa, 217 SCRA 597; Judge Abelita
v. P/Supt. Doria et al., GR No. 170672, August 14, 2009; Zalameda v.
People, GR No. 183656, Sept. 2009).)
The fact that the evidence is in plain view is not alone sufficient to justify
a warrantless seizure. American courts which have extensively discussed
the principle have held that the seizure be based also on the
“immediately apparent” element.
“Immediately apparent” requires merely that the seizure be
presumptively reasonable assuming that there is probable cause to
associate the property with criminal activity; that a nexus exists between
a viewed object and criminal activity” (United Laboratories v. Isip, 461
SCRA 574).
Reason for the rule:
The doctrine is a recognition however, of the fact that when executing
police officers come across immediately upon incriminating evidence not
covered by the warrant, they should not be required to close their eyes to
it, regardless whether it is evidence of the crime they are investigating or
evidence of some other crime because it would be needless to require the
police to obtain another warrant. Under the plain view doctrine, there is
no legitimate expectation of privacy and there is no search within the
meaning of the Constitution.
The “inadvertence” requirement means that the officer must not have
known in advance of the location of the evidence and discovery is not
anticipated (United Laboratories v. Isip, 461 SCRA 574; Felimon Abelita, III
v. Doria, supra).
The plain view doctrine does not therefore apply where the officers did not
just accidentally discover the evidence but actually searched for it (Valeroso
v. CA, GR No. 164815, Sept. 3, 2009).
CUSTOMS SEARCHES
Another instance of a valid warrantless search is a search conducted under
the customs and tariff code. When a vessel arrives from abroad, the customs
agents board the vessel to look for smuggled items. They can conduct
warrantless search for the enforcement of customs laws.
1. Tariff and Customs Code authorizes Customs officials to make
arrests, search and seizure of any vessel, aircraft, cargo, article,
animal or other movable property, when the same is subject to
forfeiture or liable for any fine imposed under the Tariff and Customs
laws, rules and regulations (Sec. 2205) and, may at anytime enter,
pass through, or search any land or enclosure or any warehouse,
store or other building not being a dwelling house. (Sec. 2208) A
dwelling house may be entered or searched only upon warrant
issued by a judge (or such other responsible officer as may be
authorized by law) upon sworn application showing probable cause
and particularly describing the place to be searched and persons or
things to be seized. (Sec. 2209).
2. To go aboard any vessel or aircraft within the limits of any collection
district, and to inspect, search and examine said vessels or aircraft
and any trunk, package, box or envelope on board, and search any
person on board said vessel or aircraft if underway, etc. (Sec. 2210)
3. Should also apply to seizure of fishing vessels breaching our fishery
laws. (Roldan, Jr. vs. Arca, 65 SCRA 336)
4. Section 2211.
CONSENTED SEARCH
A waiver or consent cannot be presumed simply because the accused
failed to object to the search.
Elements of a valid waiver or consent:
1. That the right to privacy exists;
2. The person involved had knowledge, actual or constructive, of the
existence of such rights;
3. Said person had an actual intention to relinquish the right.(People vs.
Nuevas 516 SCRA 463, Feb. 22, 2007)
The fact that the accused failed to object to the entry into his house does
not amount to a permission to make a search therein. (People vs. Barros,
144 SCRA 01)
Totality of circumstances principle to determine if consent is voluntaryOtherwise stated, the consent must be voluntary in order to validate an
otherwise illegal detention and search, i.e., the consent is unequivocal,
specific, and intelligently given, uncontaminated by any duress or
coercion.
Hence, consent is not to be lightly inferred, but must be shown by clear
and convincing evidence.
The question whether a consent to a search was in fact voluntary is a
question of fact to be determined from the totality of all circumstances.
Relevant to this determination are the following characteristics of the
person giving and the environment in which consent is given:
(1) the age of the defendant;
(2) whether he was in a public or secluded location;
(3) whether he objected to the search or passively looked on;
(4) the education and intelligence of the defendant;
(5) the presence of coercive police procedures;
(6) the defendant’s belief that no incriminating evidence will be found;
(7) the nature of the police questioning;
(8) the environment in which the questioning took place; and
(9) the possibly vulnerable subjective state of the person consenting.
It is the state which has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained and that it was freely
and voluntarily given. (Caballes vs. CA, G.R. No. 136292, Jan. 15,2002)
SEARCHES UNDER EXIGENT/EXTRAORDINARY CIRCUMSTANCES
The last exception to the warrant exception would be searches during
exigent or extraordinary circumstances provided probable cause exists.
Just like what happened during the 1987 and 1989 coup where the military
made some searches in suspected places. In that case, there is no need to
obtain search warrants considering that during that time all the courts in
Manila were closed because of the coup de etat. Such period is considered
as extraordinary circumstance.
NOTE: This exception is a catch-all category that encompasses a number of
diverse situations. What they have in common is some kind of emergency
that makes obtaining a search warrant impractical, useless, dangerous, or
unnecessary. Among these situations are danger of physical harm to the
officer or destruction of evidence, danger to a third person, driving while
intoxicated, and searches in hot pursuit. Del Carmen, Rolando V., Criminal
Procedure for Law Enforcement Personnel, 1987 Edition p. 150 (Footnote,
People vs. Fernandez, 238 SCRA 174, 182)
NOTE: Search based on probable cause under extraordinary circumstances,
were upheld in People vs. Posadas, 188 SCRA 288 [1990]; Valmonte vs.
Villa, 178 SCRA 211 [1989]; People vs. Maspil, G.R. No. 85177, August 20,
1990, citing Valmonte vs. Villa; People vs. Malmstedt, G.R. No. 91107, June
19, 1991; People vs. Sucro, G.R. No. 93239, March 18, 1991; People vs.
Montilla, G.R. No. 123872, January, 30, 1998.
Remedy/ies
What are the remedies of the person subject of a search warrant?
1.
2.
3.
4.
Motion to Quash Search Warrant
Motion to Suppress Evidence
Certiorari under Rule 65 or
Objecting to admissibility of evidence during trial
SEC. 14. Motion to quash a search warrant or to suppress evidence;
where to file.
Motion to Quash a Warrant or Suppress Evidence; Where to file
1. If a criminal action has already been instituted:
it may be filed in and acted upon only by the court where the action
has been instituted
2. If no criminal action has been instituted:
the motion may be filed in and resolved by the court that issued the
search warrant
3. However, if such court failed to resolve the motion and a criminal case
is subsequently filed in another court:
the motion shall be resolved by the latter court
Limited Scope of Motion to Quash Search Warrant
The question of whether there was abuse in the enforcement of the
challenged search warrants is not within the scope of a Motion To Quash,
which is limited to the validity of the issuance of the warrant.
The manner of serving the warrant and of effecting the search are not an
issue to be resolved in a motion to quash the search warrant.The remedy
is a motion to suppress evidence.
2. Motion to quash and preliminary investigation
Solid Triangle v. Sheriff of RTC, 370 SCRA 491, November 23, 2001
Issue:
May the court issuing the search warrant quash the same on the
ground of lack of probable cause despite the pendency of a preliminary
investigation before the prosecutor’s office involving possession of objects
which were seized by virtue of the warrant?
Held:
Yes. The proceedings for the issuance/quashal of a search warrant
before a court and the preliminary investigation before an authorized
officer, are proceedings entirely independent of each other. The purpose
of the first is to determine whether a warrant should issue or be quashed,
and the second, whether an information should be filed in court. When the
court, in determining probable cause for issuing or quashing a search
warrant, finds that no offense has been committed, it does not interfere
with or encroach upon the proceedings in the preliminary investigation.
The court does not oblige the investigating officer not to file an information
for the court’s ruling that no crime exists is only for purposes of issuing or
quashing the warrant.
It may be true that, as a result of the quashal of the warrant, the
private complainant is deprived of vital evidence to establish his case, but
such is the inevitable consequence. Nevertheless, the inadmissibility of the
evidence obtained through an illegal warrant does not necessarily render
the preliminary investigation academic. The preliminary investigation and
the filing of the information may still proceed if, because of other
(admissible) evidence, there exists “sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial.”
3. Effect on filing of civil case
Manly Sportswear v. Dadodette Enterprises, 470 SCRA 384, September 20,
2005
Facts:
Where a court quashes a search warrant it previously issued on the
ground that there is no probable cause considering that the copyrighted
products of the complainant are not original creations, may complainant
still file a civil case for infringement of trade mark?
Held:
Yes. In the determination of the existence of probable cause for the
quashal of a warrant, it is inevitable that the court may touch on issues
properly threshed out in a regular proceeding. In so doing, it does not usurp
the power of, much less preclude, the court from making a final judicial
determination of the issues in a full-blown trial. Consequently, the court’s
finding that the seized products are not copyrightable was merely
preliminary as it did not finally and permanently adjudicate on the status
and character of the seized items. A separate complaint for copyright
infringement may still be filed because the order for the quashal of a
warrant is not res judicata.
Civil liability arising from unreasonable search and seizure
The course taken by petitioners and company stinks in illegality, not falling
under any of the exceptional instances when a warrantless search is
allowed by law. Petitioners’ violation of individual respondents’ right
against unreasonable search furnishes the basis for the award of damages
under Art. 32 of the NCC, under which not only public officers but also
private individuals are civilly liable for violation of the rights enumerated
therein. (Silahis v. Soluta, GR No. 163087, February 20, 2006).
When to object and Waiver of objections to illegal search
Demaisip v. People, 193 SCRA 373, January 25, 1991
Question:
When is there waiver of the objections to the validity of the search
warrant?
Answer:
Objections to the legality of the search warrant and to the
admissibility of the evidence obtained thereby are deemed waived when
no objection to the legality of the search warrant is raised during the trial
of the case nor to the admissibility of the evidence obtained through said
warrant.
Effect of failure to object to illegal arrest
People v. Pua, 415 SCRA 540, November 11, 2003
Question:
Where accused fails to challenge the legality of the arrest before
trial, is he also precluded from questioning the legality of the search?
Answer:
No. The waiver by the accused of his right to question the legality of
his arrest does not necessarily carry with it his waiver of the right to
question the admissibility of any evidence procured by the police on the
occasion of or incidental to his illegal arrest or thereafter. The plea and
actual participation of the accused in the trial would not cure the illegality
of the search and transform the inadmissible evidence into objects of
proof.
Question of Standing
The Constitutional right against unreasonable searches and seizures is a
personal right invocable only by those whose rights have been infringed,
or threatened to be infringed. (Valmonte vs. Villa, G.R. No. 83988, Sept. 29,
1989).
Replevin not a remedy to recover items validly seized