Definition of ex-post facto law.

1) One which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2) One which aggravates the crime or makes it greater than when it was committed. 3) One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed. 4) One which alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused. 5) One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a right, which, when done, was lawful. 6) One which deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty. Note: The prohibition on ex post facto laws only applies to retrospective PENAL laws. Definition of BILL OF ATTAINDER 1) A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial. 2) The bill of attainder does not need to be directed at a specifically named person. It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial. 3) Elements of the bill of attainder 1. There must be a LAW.

2. The law imposes a PENAL burden on a NAMED INVIDIDUAL/EASILY ASCERTAINABLE MEMBERS of a GROUP. 3. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial. Right Against Double Jeopardy (Sec. 21, Art. III) When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without his express consent, he cannot again be charged for the same offense. An accused is placed in double jeopardy if the following conditions are present: 1. He has been previously brought to trial; 2. The trial court has jurisdiction over the case; 3. The complaint or information is valid; 4. The accused has been arraigned and entered a plea; 5. The accused has been convicted or acquitted or the case against him has been dismissed or otherwise terminated without his express consent; and 6. He is being charged again for the same offense. Requisites for a valid defense of double jeopardy: CODE: ATS 1) First jeopardy must have attached prior to the second. 2) The first jeopardy must have terminated. 3) The second jeopardy must be for the same offense as that in the first.

Section 20. No person shall be imprisoned for debt or non-payment of a poll tax. Definition of debt under Section 20 1) Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money. Thus, all other types of obligations are not within the scope of this prohibition. 2) Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu. 3) A FRAUDULENT debt may result in the imprisonment of the debtor if: 1. The fraudulent debt constitutes a crime such as estafa and 2. The accused has been duly convicted. Section 19. Prohibition against cruel, degrading and inhuman punishment When is a penalty cruel, degrading and inhuman? 1. A penalty is cruel and inhuman if it involves torture or lingering suffering. Ex. Being drawn and quartered. 2. A penalty is degrading if it exposes a person to public humiliation. Ex. Being tarred and feathered, then paraded throughout town. Standards used: 1. The punishment must not be so severe as to be degrading to the dignity of human beings. 2. It must not be applied arbitrarily. 3. It must not be unacceptable to contemporary society 4. It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe punishment would. Excessive fine A fine is excessive, when under any circumstance, it is disproportionate to the offense. Note: Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is

attached if the court finds that the punishment is cruel, degrading or inhuman. Reason: Without a valid penalty, the law is not a penal law. Section 18. Right against involuntary servitude Definition of involuntary servitude It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised. Exceptions: 1. Punishment for a crime for which the party has been duly convicted 2. Personal military or civil service in the interest of national defense 3. Return to work order issued by the DOLE Secretary or the President Section 17. No person shall be compelled to be a witness against himself. When is a question incriminating: A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. Distinction between an accused and an ordinary witness 1. An accused can refuse to take the witness stand by invoking the right against selfincrimination. 2. An ordinary witness cannot refuse to take the stand. He can only refuse to answer specific questions which would incriminate him in the commission of an offense. Scope of right 1. What is PROHIBITED is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit

evidence which would not exist were it not for the actions compelled from the witness. 2. The right does NOT PROHIBIT the examination of the body of the accused or the use of findings with respect to his body as physical evidence. Hence, the fingerprinting of an accused would not violate the right against self-incrimination. However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification. 3. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him. However, a third person in custody of the document may be compelled to produce it. When the right can be invoked: 1. In criminal cases 2. In administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of property) RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL Factors used in determining whether the right to a speedy trial has been violated. 1) 2) 3) Time expired from the filing of the information Length of delay involved Reasons for the delay

Remedy of the accused if his right to speedy trial has been violated He can move for the dismissal of the case. If he is detained, he can file a petition for the issuance of writ of habeas corpus. Definition of impartial trial The accused is entitled to the cold neutrality of an impartial judge. It is an element of due process. Definition of public trial The attendance at the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is offensive to decency or public morals, the public may be excluded. The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays, either with the consent of the accused or if failed to object thereto. WHAT ARE THE REQUISITES OF A VALID TRIAL IN ABSENTIA? 1. The accused has been already arraigned 2. He has been duly notified of the trial 3. He fails to appear at the trial but his nonappearance at the trial is unjustifiable WHAT IS THE MEANING OF THE RIGHT OF PRESUMPTION OF INNOCENCE? > The right means that the presumption must be overcome by evidence of guilt beyond reasonable doubt 1. Guilt beyond reasonable doubt means that there is moral certainty as to the guilt of the accused 2. Accusation is not synonymous to guilt conviction should then be based on the strength of the evidence of the prosecution and not the weakness of the defense Section 13. Right to bail

4) Assertion or non-assertion of the right by the accused 5) Prejudice caused to the defendant.

Effect of dismissal based on the ground of violation of the accuseds right to speedy trial If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused

Who are entitled to bail: 1) 2) 3) All persons ACTUALLY DETAINED

9) Whether accused was a fugitive from justice when arrested 10) If accused is under bond in other cases

15. 1) During a police line-up. Exception: Once there is a move among the investigators to elicit admissions or confessions from the suspect. 16. 2) During administrative investigations.

shall, BEFORE CONVICTION Be entitled to bail. Implicit limitations on the right to bail: 1. The person claiming the right must be in actual detention or custody of the law. 2. The constitutional right is available only in criminal cases, not, e.g. in deportation proceedings. Note: 1. Right to bail is not available in the military. 2. Apart from bail, a person may attain provisional liberty through recognizance. 3. Section 12. Rights of person under investigation for the commission of an offense. 4. Rights of person under investigation for the Commission of an offense CODE: SCISI 5. 1) Right to remain silent 6. 2) Right to have competent and independent counsel, preferably of his own choice 7. 3) Right to provided with the services of counsel if he cannot afford the services of one. 8. 4) Right to be informed of these rights. 9. When rights are available: 10. 1) AFTER a person has been taken into custody or 11. 2) When a person is otherwise deprived of his freedom of action in any significant way. 12. 3) When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense. 13. 4) Signing of arrest reports and booking sheets. 14. When rights are not available:

Who are not entitled to bail: 1) Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA or DEATH, when evidence of guilt is strong 2) Persons CONVICTED by the trial court. Bail is only discretionary pending appeal. 3) Persons who are members of the AFP facing a court martial. Other rights in relation to bail. 1) The right to bail shall NOT be impaired even when the privilege of the writ of habeas corpus is suspended. 2) Excessive bail shall not be required.

17. 3) Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation. 18. 4) Statements made to a private person.

19. Exclusionary rule 20. 1) Any confession or admission obtained in violation of this section shall be inadmissible in evidence against him (the accused). 21. 2) Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible, being the fruit of a poisoned tree. 22. Requisites of valid waiver: 23. 1) Waiver should be made in WRITING

Factors considered in setting the amount of bail: 1) 2) 3) 4) 5) 6) 7) 8) Ability to post bail Nature of the offense Penalty imposed by law Character and reputation of the accused Health of the accused Strength of the evidence Probability of appearing at the trial Forfeiture of previous bail bonds

24. 2) Waiver should be made in the PRESENCE OF COUNSEL. What are considered protected speech: Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picketing has also been included within the meaning of speech. Prohibitions under Section 4 1. Prohibition against PRIOR RESTRAINT

1. Prohibition against SUBSEQUENT PUNISHMENT Prohibition against prior restraint 1. Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. 2. Examples/forms of prior restraint 1. movie censorship 2. judicial prior restraint = injunction against publication 3. license taxes based on gross receipts for the privilege of engaging in the business of advertising in any newspaper 4. flat license fees for the privilege of selling religious books When prohibition does not apply 1. During a war. 2. Obscene publications. Freedom of Speech The doctrine on freedom of speech was formulated primarily for the protection of core speech, i.e. speech which communicates political, social or religious ideas. These enjoy the same degree of protection. Commercial speech, however, does not.

Commercial Speech 1. A communication which no more than proposes a commercial transaction. 1. To enjoy protection: 1. It must not be false or misleading; and 2. It should not propose an illegal transaction. 1. Even truthful and lawful commercial speech may be regulated if: 1. Government has a substantial interest to protect; 2. The regulation directly advances that interest; and 3. It is not more extensive than is necessary to protect that interest. (Central Hudson Gas and Electric

Corp. v. Public Service Commission of NY, 447 US 557) Unprotected Speech 1. 1. LIBEL 1. FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is the true and honest opinion of the person. The statements are not used to attack personalities but to give ones opinion on decisions and actions. 1. OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations. Comment on their private lives, if not germane to their public personae, are not protected. 2. OBSCENITY Test for obscenity (Miller v. California) 1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by law. 3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. 2. Procedure for seizure of allegedly obscene publications 1. Authorities must apply for issuance of search warrant. 2. Court must be convinced that the materials are obscene. Apply clear and present danger test. 3. Judge will determine whether they are in fact obscene. 4. Judge will issue a search warrant. 5. Proper action should be filed under Art. 201 of the RPC. 6. Conviction is subject to appeal.

7. Section 10. No law impairing the obligation of contracts shall be passed. 8. When does a law impair the obligation of contracts: 9. 1) If it changes the terms and conditions of a legal contract either as to the time or mode of performance 10. 2) If it imposes new conditions or dispenses with those expressed 11. 3) If it authorizes for its satisfaction something different from that provided in its terms. 12. A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. 13. A valid exercise of police power is superior to obligation of contracts. 14. Right to Free Access to the Courts and Adequate Legal Counsel (Sec. 11, Art. III) 15. Poverty should not be a reason for anyone in not going to courts or quasi-judicial bodies. For this reason, the Constitution guarantees everyone the free access to the courts and quasi-judicial bodies. A pauper litigant is exempt from the payment of filing fees and other court fees. They are also provided with free and adequate legal counsel through the Public Attorneys Office and IBP legal assistance programs.