RULE 121 NEW TRIAL OR RECONSIDERATION

Reported by: MAE D. BORLA

Sec. 1 New trial or reconsideration. At any time before a judgment of
conviction becomes final, the court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a new trial or reconsideration.
NEW TRIAL
a. The case is opened again after judgment
for the reception of new evidence and
further proceedings
b. Different grounds for Motion for New
Trial:
i.
Errors of law
ii.
Irregularities prejudicial to the
substantial rights of the accused.
iii.
Newly discovered evidence.

RECONSIDERATION
a. The case is not reopened for further
proceeding. The court is merely asked to
reconsider its findings of fact in order
them conformable to the law applicable
to the case.
b. Different
grounds
for
Motion
for
Reconsideration:
i.
Errors of law
ii.
Errors of fact

Period to file Motion for New Trial or Reconsideration

notice.

Before a conviction becomes final within fifteen (15) days from its promulgation or

Who may file

a. On motion of the accused
b. Initiated by the court with consent of the accused
- The requisite consent of the accused to such motion for reconsideration or
modification is intended to protect the latter from having to defend himself anew
for more serious offenses and penalties which the prosecution or the court may
have overlooked. (People vs. Astudillo, G.R. No. 141518, April 29, 2003)
Double Jeopardy cannot be invoked
When the accused himself files or consents to the filing of a motion for
reconsideration or modification, double jeopardy cannot be invoked because the accused
waived his right not to be placed therein by filing such motion. His motion gives the court an
opportunity to rectify its errors or to reevaluate its assessment of facts and conclusions of
law and make them conformable with the statute applicable to the case in the new
judgment it has to render. (People vs. Astudillo, G.R. No. 141518, April 29, 2003)
Sec. 2. Grounds for a New Trial. The court shall grant a new trial on any of
the following grounds:
(a)That errors of law or irregularities prejudicial to the substantial rights of
the accused have been committed during the trial;
(b)That new and material evidence has been discovered which the accused
could not with reasonable diligence have discovered and produced at the
trial and which if produced and admitted would probably change the
judgment.
a. As to errors of law or irregularities
-

Irregularities must be with such seriousness as to affect prejudicially the

substantial rights of the accused during trial.

1. Errors of law;
Example: In one case, during the trial, the trial court excluded a defense witness from testifying based
on an erroneous interpretation of the rules of evidence. The judge disqualified him. But it turned out
that the witness was not disqualified. That is an error of law. For all you know, if his testimony will be

given, the accused will be acquitted. Therefore, a new trial should be granted where he should be
allowed to testify. (People vs. Estefa, 86 Phil. 104)
2. Irregularities prejudicial to the substantial rights of the accused;
Example: In one case, the trial court compelled the accused, over his objection, to submit to trial
without the assistance of his counsel. (People vs. Enriquez, L-4934, November 28, 1951) If the
accused is convicted because of such irregularity, this is a valid ground for new trial. Besides, why
should the judge punish the accused? He should punish the lawyer.

General Rule: Error of the defense counsel in the conduct of the trial is neither an error of
law nor an irregularity.
Exception: When the incompetency of the counsel is so great that the defendant is
prejudiced and prevented from fairly presenting his defense and where the error of the
counsel is serious.
b. As to newly discovered evidence
Requisites:
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and produced at trial even with the
exercise of reasonable diligence;
3. The evidence is material not merely cumulative, corroborative or impeaching; and
4. It must go to the merits as ought to produce a different result if admitted.
Strict application of the requisites
In Custodio v. Sandiganbayan, the court en banc expressed their reluctance to grant
new trial on ground of newly discovered evidence for it is presumed that the moving party
had ample opportunity to prepare his case carefully and to secure all the evidence
necessary before the trial such motions are treated with great reluctance.
The BERRY Rule
The Supreme Court of Georgia held:
Applications for new trial on account of newly discovered evidence, are not favoured
by the Courts. x x x x Upon the following points there seems to be a pretty general
concurrence of authority, viz., that it is incumbent on a party who asks for a new trial, on
the ground of newly discovered evidence, to satisfy the Court, 1 st. That the evidence has
come to his knowledge since the trial. 2d. That it was not owing to the want of diligence that
it did not come sooner. 3d. That it is so material that it would produce a different verdict, if
the new trial were granted. 4th. That it is not cumulative only viz., speaking to facts, in
relation to which there was evidence on the trial. 5 th. That the affidavit of the witness
himself should be produced, or its absence accounted for. And 6 th, a new trial will not be
granted, if the only object of the testimony is to impeach the character or credit of a
witness.
Burden of Proof
The applicant for new trial has the burden of proof of showing that the new evidence
he seeks to present has complied with the requisites to justify the holding of a new trial.
Threshold Question
Whether or not the proferred evidence is in fact a newly discovered evidence which
could not have been discovered by due diligence.
Aspects:
1. Temporal one when the evidence discovered

2. Predictive one when should or could it have been discovered; the requirement of
due diligence has relevance
What is essential is not so much the time when the evidence offered first sprang into
existence nor the time when it first came to knowledge of the party no submitting it;
what is essential is that the offering party had exercised reasonable diligence in seeking
to locate such evidence before or during trial but had nonetheless failed to secure it.
Concept of due diligence must have both a time component and a good faith component
Grant of New Trial Based on Recantation of Witness
Recantation to recant a prior statement is to renounce and withdraw it formally and
publicly
General Rule: Recantations are hardly given much weight in the determination of a case and
in the granting of a new trial.
Exception: When there is no evidence sustaining the judgment of conviction other that the
testimony of a witness or witnesses who are shown to have made contradictory statements
as to material facts under which circumstances the court maybe led to a different conclusion
so that a new trial or a reversal of the judgment may be called for.
Sec. 3. Ground for Reconsideration. The court shall grant reconsideration
on the ground of errors of law or fact in the judgment, which requires no further
proceedings.
Grounds for a motion for reconsideration:
a. Errors of law in the judgment which requires no further proceedings; or
b. Errors of fact in the judgment which requires no further proceedings.
As errors of law in the judgment do not affect or invalidate the whole proceeding
prior to the judgment, but only the judgment itself, to correct such errors no new trial is
required but only a reconsideration of the original and rendition of a new judgment, without
necessity of granting new trial. (People vs. Enriquez and Salud, G.R. No. L-4934, November
28, 1951)
Sec. 4. Form of motion and notice to the prosecutor. The motion for new
trial or reconsideration shall state the grounds in which it is based. If based on
newly discovered evidence, the motion must be supported by affidavits of
witnesses by whom such evidence is expected to be given or by duly authenticated
copies of documents which are proposed to be introduced in evidence. Notice of
the motion for new trial or reconsideration shall be given to the prosecutor.
Necessity of Notice of Hearing the motion must be accompanied with a notice of hearing
without it would render the motion a mere scrap of paper
Exception: The rule may, however, be relaxed in certain cases where the rigid application of
the rule will result in a manifest miscarriage of justice.
Who should be notified?
Notice should be given to the prosecutor.
Sec 5. Hearing on motion. Where a motion for new trial calls for resolution
of any question of fact, the court may hear evidence thereon by affidavits or
otherwise.
Sec. 6. Effects of granting a new trial or reconsideration. The effects of
granting a new trial or reconsideration are the following:
(a)When a new trial is granted on the ground of errors of law or
irregularities committed during the trial, all the trial proceedings and
evidence affected thereby shall be set aside and taken anew. The court

may, in the interest of justice, allow the introduction of additional

evidence.
(b)When a new trial is granted on the ground of newly discovered evidence,
the evidence already adduced shall stand and the newly discovered and
such other evidence as the court may, in the interest of justice, allow to
be introduced shall be taken and considered together with the evidence
already in the record.
(c) In all cases, when the court grants new trial or reconsideration, the
original judgment shall be set aside or vacated and a new judgment
rendered accordingly.
Effects of Granting a New Trial or Reconsideration
Ground
Errors
of
law
or
irregularities
committed
during the trial

Newly-discovered evidence

Effect
All proceedings and evidence
affected shall be set aside and
taken anew.
If error or irregularity goes into
the jurisdiction, the entire
proceeding is void and must be
set aside.
Evidence already adduced shall
stand and the newly-discovered
and such other evidence shall
be
taken
and
considered
together with the evidence
already in record.

The Court may:

Allow introduction of additional
evidence in the interest of
justice.

Allow introduction of other such

evidence in the interest of
justice.

No Double Jeopardy
The effect of the granting of a new trial is not to acquit the accused of the
crime of which the judgment finds him guilty, but precisely, to set aside said
judgment so that the case may be tried de novo as if no trial had been had before,
for the purpose of rendering a judgement in accordance with the law, taking into
consideration the evidence to be presented during the second trial.
Effect of Denial of Motion for New Trial/Reconsideration
It is tThe denial of the motion for reconsideration that constituted the final order
which finally disposed of the issued involved in the case.
Remedy if there is Grave Abuse of Discretion in the Grant of Motion for New
Trial/Reconsideration
A petition for certiorari or prohibition. Otherwise, the prosecution may no
longer have opportunity to question the order if accused is acquitted after a new trial
is conducted (because there will be double jeopardy). [Luciano v. Estrella (1970)]
Application of the Neypes Doctrine
The Neypes Doctrine provides that a party may appeal for a fresh-period of 15
days from the receipt or notice of denial of a motion for reconsideration or motion for new
trial.
In the case of Judith Yu vs. Judge Samson-Tatad (G.R. No. 170979, February 9,
2011), it was held that the fresh period rule previously laid down in Neypes vs. CA, shall
likewise be applicable to criminal cases for the following reasons:
a. Section 39 of B.P. Blg. No. 129, the substantive law on which the Rules of Court is
based, does not distinguish between a civil and criminal case in setting the period to
appeal at 15 days from the notice of the final order appealed from. It categorically
states that [t]he period for appeal from final orders, resolutions, awards,

b.

judgments, or decisions of any court in all cases shall be fifteen (15) days counted
from the notice of the final order, resolution, award, judgment or decision appealed
from. Ube lex non distinguit nec nos distinguere debemos. When the law makes no
distinction, we (this Court) also ought not to recognize any distinction.
The provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and
Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, though differently
worded, mean exactly the same. There is no substantial difference between the two
provisions in so far as legal results are concerned - the appeal period stops running
upon the filing of a motion for reconsideration. It was the situation that Neypes
addressed in the civil case. No reason exists why this situation in criminal cases
cannot be similarly addressed.