CRIMINAL PROCEDURE (WILLARD RIANO)
CHAPTER 1: PRELIMINARY CONSIDERATION
I. BASIC CONCEPTS
CONCEPT OF CRIMINAL PROCEDURE
- Series of processes by which the criminal laws are enforced and by which the state
prosecute persons who violate the penal laws
- Regulates the steps by which one who committed a crime is to be punished
- Generic term to describe the network of laws and rules which governs the
procedural administration of justice
ADVERSARIAL OR ACCUSATORIAL SYSTEM
- Two contending parties before the courts which hears them impartially and renders
judgment only after trial
- Prosecution and the defense tries to convince the court that its position is the
correct version of the truth
- STARTS: indictment (complaint or information)
- Government and accused present their evidence before the court which shall
decide either on acquittal or conviction of the accused
- Court plays an active role and may utilize evidence gathered outside the court and
a judge or a group of judges under this system actively participates in the
gather of facts and evidence instead of merely passively receiving information
or evidence.
- Judge steers the course of the proceedings by directing and supervising the
gathering of the evidence and the questioning of the witnesses
- VS. INQUISITORIAL SYSTEM :
LIBERAL INTERPRETATION OF THE RULES
- Liberally construed in order to promote their objective of securing a just, speedy
and inexpensive disposition of every action and proceeding.
DUE PROCESS:MANDATORY
- “law which hears before it condemns and proceeds upon inquiry and renders
judgment only after trial”
- REQUIREMENTS OF DUE PROCESS
1. Tribunal trying the case is properly clothed with judicial power to hear and
determined the matter before it
2. Jurisdiction is lawfully acquired by it over the person of the accused
3. Accused is given opportunity to be heard
- Judgment is rendered only upon lawful hearing
A. REQUISITES FOR THE EXERCISE OF CRIMINAL JURISDICTION
1. Jurisdiction over the subject matter
2. Jurisdiction over the territory
3. Jurisdiction over the person of the accused
JURISDICTION OVER THE SUBJECT MATTER VERSUS OVER THE
PERSON OF THE ACCUSED
JURISDICTION OVER THE JURISDICTION OVER
SUBJECT MATTER THE PERSON OF THE
DIATO2014NOTES
ACCUSED
- Authority of the court to hear and - Authority of the court over the
determine a particular person charged
criminal case. - Person charged must have been
- Authorized by law brought in to its forum for
trial, forcibly by warrant of
arrest or upon his voluntary
submission to the court.
JURISDICTION OVER THE TERRITORY; VENUE IN CRIMINAL
CASES
- Offense must have been committed within the court’s territorial jurisdiction.
- Determined by the facts alleged in the complaint of information.
o Tried in the court of the municipality or territory wherein the offense
was committed or where anyone of the essential ingredients took
place.
- PURPOSE for having a case tried in the court of the territory where the
offense was committed: not to compel the defendant to move to, and appear
in, a different court from that of the province where the crime was committed
as it would cause him great inconvenience in looking for his witnesses and
other evidence in another place.
- Court finds out that the offense was committed elsewhere : DISMISS the action
for want of jurisdiction
WHEN A COURT HAS JURISDICTION TO TRY OFFENSES NOT
COMMITTED WITHIN ITS TERRITORIAL JURISDICTION
1. ENUMERATED IN ART. 2 OF THE RPC
Art. 2. Application of its provisions. — Except as provided in the treaties and
laws of preferential application, the provisions of this Code shall be enforced not
only within the Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands
3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the presiding
number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions; or
5. Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of this Code.
(CRIMES AGAINST NATIONAL SECURITY: treason, conspiracy
and proposal to commit treason, misprision of treason, espionage,
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CRIMINAL PROCEDURE (WILLARD RIANO)
inciting to war and giving motives for reprisal, violation of neutrality,
correspondence with hostile country, and flight to enemy’s country
RPC 114-121)
(CRIMES AGAINST LAW OF NATIONS: piracy and mutiny,
qualified piracy RPC 122-123
2. SC orders a change of venue or place of trial to avoid miscarriage of justice
3. Offense is committed in a train, aircraft or other public or private vehicle in
the course of its trip. Instituted and tried in the court of any municipality or
territory where said train, aircraft or vehicle passed during its trip. May also
be instituted in the place of departure and arrival.
4. Committed on board a vessel in the course of its voyage, can be instituted
and tried in the place of the commission of the crime, in the court of the first
port of entry or in the municipality or territory where the vessel passed
during the voyage
5. Cognizable by the Sandiganbayan which depends upon the nature of the
offense and the position of the accused.
6. Written Defamation :
a. Private / Public Official – CFI (RTC) where the libelous article is
printed and first published.
 It must state the libelous material was either printer or first
published in the place of the filing of the information.
b. Private individual – CFI (RTC) of the province where he actually
resided at the time of the commission of the offense
c. Public Officer in Manila – CFI (RTC) of Manila
d. Public Officer outside Manila – CFI (RTC) of the province / city
where he held office at the time of the commission of the offense
B. CRIMINAL JURISDICTION OVER THE SUBJECT MATTER
JURISDICTION OVER THE SUBJECT MATTER
- JURISDICTION –
o right to act or he power and authority to hear and determine a cause
o determined issues of facts and of law, the power to inquire into the
facts, to apply the law and to pronounce judgment.
- CRIMINAL JURISDICTION-
o Authority to hear and try a particular offense and impose the
punishment for it.
HOW JURISDICTION OVER THE SUBJECT MATTER IS CONFERRED
- Conferred by the law. Conferment from the statute must be clear or will not be
held to exist
- Jurisdiction over subject matter cannot be waivered.
HOW JURISDICTION OVER THE SUBJECT MATTER IS
DETERMINED
- Determined by the allegations in the COMPLAINT OF INFORMATION not by
the evidence presented by the parties at the trial
DIATO2014NOTES
- Cases cognizable by SANDIGANBAYAN
- COMPLEX CRIMES : jurisdiction is with the court having jurisdiction to impose
the maximum and most serious penalty imposable on the offense forming part
of the complex crime.
STATUTE APPLICABLE TO A CRIMINAL ACTION
- Criminal action is determined by the law in force at the time of the institution of
the action and not during arraignment of the accused
- Statute in force at the time of the institution of the action determines jurisdiction of
the court and not at the time of its commission.
USE OF THE IMPOSABLE PENALTY
- Consider the penalty which may be imposed upon the accused not the actual
penalty imposed after trial
- Extent of the penalty which the law imposes for the offense, on the basis of the
facts alleged in the information or complaint.
PRINCIPLE OF ADHERENCE OF JURISDICTION OR CONTINUING
JURISDICTION
- Once a court has acquired jurisdiction, that jurisdiction continues until the court
has done all that it can do in the exercise of that jurisdiction.
- Jurisdiction once vested cannot be withdrawn or defeated by a subsequent valid
amendment of the information or by a new law amending the rules of
jurisdiction
- EXCEPTION: statute expressly so provides or is construed to the effect that it is
intended to operate upon actions pending before its enactment.
DISMISSAL ON JURISDICTIONAL GROUNDS; SPECIAL
APPEARANCE
- Objection based on lack of jurisdiction over the subject matter may be raised at
any stage of the proceedings or on appeal.
- Special appearance to challenge the court is not tantamount to estoppel or a waiver
of the objection and is not a voluntary submission to the jurisdiction of the
court.
RAISING THE ISSUE OF JURISDICTION FOR THE FIRST TIME IN
THE SUPREME COURT
- Raising the issue of jurisdiction may be raise at any stage of the proceedings or on
appeal.
- Cannot invoke the jurisdiction of the court to secure affirmative relief against his
opponent and after obtaining and failing to obtain such relief.
C. CRIMNAL JURISDICTION OVER THE PERSON OF THE ACCUSED
- Jurisdiction of a person is acquired :
o Arrest / apprehension with or without a warrant
o Voluntary appearance
o Submission to the jurisdiction of the court
 Filing a motion to quash
 Appearing for arraignment
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CRIMINAL PROCEDURE (WILLARD RIANO)
 Participating in the trial
 Giving bail
 Counsel- assisted please
 Presenting evidence for the defense
o Affirmative relief : deemed to be a submission to the jurisdiction of
the court
- EXCEPT:
o Special appearance to question the jurisdiction of the court over the
person of the accused
o Files a motion to quash the warrant of arrest. Legality of the court
process forcing the submission of the persons.
- Custody of the Law does NOT MEAN being under the jurisdiction of the court.
D. INJUCTION TO RESTRAIN CRIMINAL PROSECUTION
- GENERAL RULE: court will NOT issue writs of prohibition or injunction
preliminary or final, to enjoin or restrain, criminal prosecution.
- EXCEPTION:
o Injunction is necessary to afford adequate protection to the
constitutional rights of the accused
o Necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions
o There is a prejudicial question which is subjudice
o Acts of the officer are without or in excess of authority
o Prosecution is under an invalid law, ordinance or regulation
o Double jeopardy is clearly apparent
o Court has no jurisdiction over the offense
o Case of persecution rather than prosecution
o Charges are manifestly false and motivated by the lust for vengeance
o Clearly no prima facie case against the accused and motion to quash
on that ground has been denied.
E. MANDAMUS TO COMPEL PROSECUTION
- MANDAMUS: remedial measure for parties aggrieved which shall be issued
when “any tribunal, corporation, board, officer or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust or station””
- Prosecutor : matter of discretion to determine which persons appear responsible
for the commission of the crime. Once he finds the person liable the rule loses
its discretionary character and becomes mandatory. Mandatory to charge that
person.
o Public prosecutor is afforded wide latitude and discretion in the
conduct of a preliminary investigation EXCEPT upon judicial review
where respondent has clearly established that the prosecutor
committed grave abuse of discretion.
II. CRMINAL JURISDICTION OF THE COURTS
DIATO2014NOTES
A. CRIMINAL JURISDICTION OF THE MUNICIPAL TRIAL COURT,
MUNICIPAL CIRCUIT TRIAL COURT AND METROPOLITAN TRIAL
COURT
- Violation of city or municipal ordinances within their respective territories
- Offenses punishable with imprisonment NOT EXCEEDING 6years irrespective of
the amount of fine and other imposable or accessory penalties (prision
correctional)
- Fine of not more than 4,000php
- Damage to property through criminal negligence
- Violation of BP 22
- Summary Proceedings
o Violation of traffic rules and reglations
o Violation of the rental law
o Violation of municipal or city ordinances
o Criminal cases not exceeding 6 monts
o Penalty of a Fine not exceeding 1,000php
o Damage to property through criminal negligence where the fine
DOES NOT exceed 10,000php
- Application for bail in the absence of RTC
- EXCEPTION: those falling withing the exclusive jurisdiction of the RTC and
Sadiganbayan
B. CRIMINAL JURISDICTION OF REGIONAL TRIAL COURT
- Exclusive original jurisdiction in all criminal cases not within the exclusive
jurisdiction of any court, tribunal or body except those under Sandiganbayan
- Appellate jurisdiction : cases decided by MTC
- Special Jurisdiction: cases designated by the SC
- Specific Laws:
o Written defamation
o Dangerous drugs act of 2002
o Intellectual property rights
- Money Laundering cases
C. CRIMINAL JURISDICTION OF THE SANDIGANBAYAN
- Anti-Graft and corrupt practices RA 3019
o One or more of the accused are officials occupying the following
positions in the government:
1. officials of the executive branch positions of regional
direction and higher classified as GRADE 27 and higher of
the compensation and position classification act of 1989
2. members of congress and officials classified under
GRADE 27
3. members of the judiciary without prejudice to the
provisions of the constitution
4. chairman and members of the constitutional commissions
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CRIMINAL PROCEDURE (WILLARD RIANO)
5. National and local officials as GRADE 27
o Offenses or Felonious wether simple or complexed committed by
public officials and employees
o Civil and criminal cases in connection with EO 1,2,14,14-A
- Appellate : RTC->Sandiganbayan -> SC
a. OFFENSES SUBJECT TO THE JURISDICTION OF THE
SANDIGANBAYAN
o RA 2019 Anti Graft and Corrupt Practices Act
o RA 1379 Act eclaring Forfeiture in Favor of the State any property
found to have been lawfully acquired by any public officer or
employee
o Ch.2 Sec 2 Title 7 Book 2 RPC : bribery in all forms including
corruption of public officers
o Simple or complexed commited by public officials with GRADE 27
salary
b. OFFICERS FALLING BELOW SALARY GRADE 27
o The Sandiganbayan may take cognizant of cases of those who fall
under Grade 27 provided that they hold the position enumerated in the
same law
c. SALARY GRADE ALONE DOES NOT DETERMINE JURISDICTION OF
THE SANDIGANBAYAN
o Enumerated in PD1606 those official which the Sandiganbayan may
take cognizant of even though falling below Grade 27 salary
d. OFFENSES COMMITTED IN RELATION TO THE OFFICE
o “The relation has to be such that, in legal sense, the offense cannot
exist without the office”
o Office must be constitutent element of the crime
o INFORMATION should aver the intimate connection between the
office and the offense.
o FACTOR THAT CHARACTERIZES THE CHARGE: actual recital
of the facts in the complaint of information
e. WHEN THE ACTUAL SPECIFIC ALLEGATIONS OF THE INTIMACY
BETWEEN THE OFFENSE AND OFFICIAL DUTIES OF THE ACCUSED
NEED NOT APPEAR IN THE INFORMATION
o Not require if public office is a CONSTITUENT ELEMENT of the
crime
o NOT CONSTITUENT : There should be specific actual allegations:
showing intimate connection between the offense charged and the
public office.
f. ANTI MONEY LAUNDERING CASES
o Public officials in conspiracy with a private person shall be under the
Sandiganbayan
g. FORFEITURE CASES
DIATO2014NOTES
o RA1379: separate and ifferent from a plunder case.
 Preponderance of evidence : disproportion of repsondents
properties to his legitimate income.
o PLUNDER CASE: sought to be established is the commission of the
criminal acts in furtherance of the acquisition of ill gotten wealth.
SUMMARY PROCEDURE IN CRIMINAL CASES
 MTC, MTCC, MTC, MCTC : take cognizant over cases falling under
summary procedure.
 Cases subject to summary proceeding.
o Violation of traffic rules and reglations
o Violation of the rental law
o Violation of municipal or city ordinances
o Criminal cases not exceeding 6 monts
o Penalty of a Fine not exceeding 1,000php
o Damage to property through criminal negligence where the fine
DOES NOT exceed 10,000php
 FILING : complaint / information
o Accompanied by the affidavits of the complaint and his witnesses
 Ground to hold a case?
a. NO GROUND : dismissal
b. FOUND GROUND TO HOLD THE ACCUSED TRIAL : set the
case for arraignment and trial
 BEFORE CONDUCTING TRIAL : preliminary conference for the
purpose:
a. Entering into a stipulation of facts
b. Allowint the accused to enter a plea of guilty to a lesser offense
c. Accused fails to stipulate it shall not prejudice the accused.
Admission during this stage must be reduced to writing and
sigbed by accused and his counsel.
d. Actual direct examination NOT REQUIRED.
e. NOT MANDATE the arrest of the accused EXCEPT where the
ground is failure to appear when required by the court.
f. TRIAL HAS BEEN CONDUCTED: promulgate judgment not
later than 30days after termination of the trial.
PROHIBITED PLEADINGS, MOTIONS AND PETITIONS IN SUMMARY
PROCEDURE
- Motion to quash complain or information EXCEPT if the ground is lack of
jurisdiction over the subject or failure to comply with the barangay conciliation
proceedings
- Motion for bills of particulars
- Motion for new trial / consideration of a judgment / reopening of trial
- Petition for relief from judgment
- Motion for extension of time to file pleadings, affidavits or any other paper
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CRIMINAL PROCEDURE (WILLARD RIANO)
- Memoranda
- Petition for certiorari, mandamus, prohibition against any interlocutory order by
the court
- Motion to declare the defendant in default
- Dilatory motions for postponement
- Reply
- Third party complaints
- Interventions.
III. SYNOPSIS OF THE CRIMINAL LITIGATION
A. INITIAL CONTACT WITH THE CRIMINAL JUSTICE SYSTEM
 Presupposes the prior commission of a crime ir at least the perception that
a crime has been committed
 VICTIMS:
a. Private person : natural or a juridical person
b. Juridical or artificial person
c. Public interest
d. National security
 Rules come into operation only when acts are initiated that would put the
offender in contact with the law. (brought to the attention of duly
constituted authorities)
 How to institute?
a. File a written complaint before the barangay
b. Sworn statement before the prosecuting arm of the government
c. Filing of a complaint directly with the municipal trial court
d. Law enforcement officers searches a place under the control of
the allege offender and seize items
e. Arrested in flagrante delicto or by virtue of a hot pursuit
f. Violations of laws or ordiancens which require compliance with
the barangay conciliation proceedings (PD1508 and RA 7160
Local Government Code)
g. Complaint in affidavit form is filed before an authorized officer
for the purpose of conducting a preliminary investigation, inquiry
aimed at determining whether a crime has been committed and
that the person complained of is probably guilty thereof.
Recommend dismissal or filing of information in court.
h. Lawfully arrested without a warrant either by a peace officer or
by a private person and those arrested under valid warrantless
arrest.
i. Law enforcement authorities are in possession of information on
possible criminal activities. The authorities initiate a search and
seizure by virtue of a search warrant duly issued.
B. FILING OF THE INFORMATION OR COMPLAINT AND OTHER
PROCESSES
DIATO2014NOTES
 Commenced by filing a complaint or information and prosecuted under the
control and direction of the public prosecutor (special cases private
prosecutor)
 Complaint or information is required by the rules to be in writing.
a. Caption (2 names : People of the Philippines and name of the
accused)
b. Name of the accused
c. Name of the offended party
d. Designation of the offense
e. Acts or omissions constituting the offense
f. Specific qualifying and aggravating circumstances
C. IMPLIED INSTITUTION OF THE CIVIL ACTION
 GENERAL RULE: Civil liability arising from the offense charged shall
be deemed to be instituted with the criminal action
 EXCEPT:
a. Offended waives the civil action
b. Reserves the right to institute the same separately
c. Institutes the civil action prior to the criminal action
 INDEPENDENT CIVIL ACTIONS : not deemed instituted because they
do not legally arise from the offense charged and are independent sources
of liability.
 When criminal action has been commenced, the civil actions is suspended
in whatever stage it may be found until final judgment has been entered in
the criminal action EXCEPT
a. for INDEPENDENT CIVIL ACTIONS which shall proceed
independently of the criminal action.
b. prejudicial question (involves an issue similar or intimately
related to the issue raised in the subsequent criminal action and
the resolution of such issue determines whether or not the
criminal action may proceed) which suspends the criminal action.
D. AVAILMENT OF PROVISIONAL REMEDIES
 Criminal action is properly instituted with the civil action, offended party
may avail of provisional remedies. Example:
a. Property of the accused attached as security (claim for money or
property embezzled by the accused)
E. BAIL
 Gain his release from confinement by availing of the constitutional right to
bail which may be given in the form of:
a. Corporate surety
b. Bond
c. Cash deposit
d. recognizance
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CRIMINAL PROCEDURE (WILLARD RIANO)
 Apply for bail
a. Before or after he is formally charged
b. Application is made in the court where his case is pending
 NO BAIL after a judgment of conviction has become final.
 Application of bail shall not bar the accused from challenging the validity
of his arrest
 Matter of RIGHT or JUDICIAL DISCRETION
a. Based on the evidence of guilt is strong or not.
F. ARRAIGNMENT; BILL OF PARTICULARS; SUSPENSION OF
ARRAIGNMENT
 ARRAIGNMENT: formal mode and manner of implementing the
constitutional right of an accused to be informed of the nature and cause of
the accusation against him
 Accused escape before arraignment : NO TRIAL IN ABSENTIA
 Arraigned in the court where complaint or information was filed.
a. Made in Open Court,
b. furnishing the accused with a copy of the complaint or
information and
c. reading of the same in a language he understands.
d. Then asked whether he pleads guilty or not guilty.
 Accused : remedy
a. Move for bill of particulars (defects in the information or
complaint which prevent him from properly pleading to the
charged preparing for trial)
b. Suspension of arraignment (justifiable reasons do exist for its
suspension when among others, the accused appears to be
suffering from an unsound mental condition)
c. Move to quash i.e. dismiss the complaint or information
 of evidence (the court may dismiss the case after giving
G. QUASHAL OF COMPLAINT OR INFORMATION
 Motion to Quash (written motion signed by the accused or his counsel
which is supposed to distinctly specify both its factual and legal
grounds)
 May move to quash on any grounds provided by the Rules BEFORE
ENTERS PLEASE.
 Example:
a. Facts charged do not constitute an offense
b. Court trying the case has no jurisdiction over the offense charged
or over the person of the accused
H. PRE-TRIAL
DIATO2014NOTES
 After arraignment and within 30 days from the date the court acquires
jurisdiction, court shall order mandatory trial conference to consider
certain matters including:
a. Plea bargaining
b. Stipulation of facts
c. Marking of the evidence
d. Waiver of objections to admissibility
e. Possible modification of the order of the trial
f. Other matters that will help promote fair and expeditious trial.
 After PRE TRIAL CONFERENCE the court shall issue an order reciting
the actions taken, the facts stipulated and the evidence marked
a. Pre- trial order shall bind the parties, limit the matters not
disposed, control the court of the trial
b. UNLESS modified to prevent manifest injustice
c. Agreements or admissions in pre- trial shall be reduced to writing
and signed by the accused and counsel
I. TRIAL; DEMURRER
 Within 30 days from receipt of the pre- trial, the trial shall commence and
shall continue from day to day as far as practicable but may be postponed
for a reasonable period of time for good cause
 Prosecution presenting evidence
a. Accused admits the act or omission the order of trial may be
modified
 When prosecution rests its case, accused may now present his evidence to
prove his defense and the damages he may have sustained arising from any
provisional remedy issued in the case
b. Instead of presenting evidence opt to move to dismiss the case by
presenting a demurrer to evidence on the ground of insufficiency
prosecution the opportunity to be heard)
c. Demurrer filed with leave of court is denied: accused may adduce
evidence
d. Demurrer filed without leave of court is denied: the accused
waive the right to present evidence
 Prosecution and the defense my in the same order present rebuttal and sur-
rebuttal evidence
 Upon admission of the evidence the case shall be deemed submitted for
decision unless the court directs them to argue orally or to submit written
memoranda
J. JUDGMENT
 JUDGMENT: adjudication by the court on the guilt or innocence of the
accused and the imposition on him of the proper penalty and civil liability.
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CRIMINAL PROCEDURE (WILLARD RIANO)
 Requirements:
a. Written in the official language
b. Personally and directly prepared by the judge
c. Signed by the judge
d. Contain clear and distinctly a statement of the facts and the law
upon which it is based.
 Promulgation : by reading it in the presence of the accused and any judge INTRODUCTION
of the court in which it was rendered UNLESS it is a light offense
judgment may be pronounce in the presence of his counsel/representative
K. POST-JUDGEMENT REMEDIES
 Before judgment becomes final or before an appeal is perfected, accused
may filed for the modification of the judgment or for the setting aside of
the same.
 Before the judgment of conviction becomes final
a. Move for new trial upon errors of law or irregularities during the
trial and the discovery of new or material evidence
b. Motion for reconsideration on the ground of errors of law or fact
in the judgment
c. Court on its own with the consent of the accused grant a new trial
or reconsideration
 Before the finality of judgment, an appeal from a judgment of conviction
in accordance with the riles, Notwithstanding the perfection of the appeal,
court may allow the appellant upon proper motion to withdraw the appeal
already perfected before the record has been forwarded by the clerk of
court to the proper appellate court.
a. Appeal may be withdrawn upon proper motion of the appellant
before the rendition of the judgment of the case on appeal.
 Cases decided by MTC, MCTC, MTC or MCTC shall be appealed to the
RTC.
a. RTC shall be appealable to the CA or to the SC as provided by
the law
b. CA / Sandiganbayan shall be appealable to the SC
 Appeal to the RTC/CA decided by RTC shall be by notice of appeal filed
with the court which rendered judgment or final order appealed from
 Appeal to the CA decided by the RTC shall be by petition for review under
Rule 42
 Appeal in cases where the punishment is reclusion perpetua by the RTC
shall be by notice of appeal to the Ca in accordance with Rule 122. A
review of the case by CA is necessary before it is elevated to the SC
 Decisions and final orders of the Sandiganbayan shall be appealable to the
SC by petition for review on certiorari in accordance with Rule 45 of the
rules of Court.
DIATO2014NOTES
L. ENTRY OF JUDGEMENT
 All remedies have been exhausted and judgment become final, it shall be
entered in accordance with existing rules
CHAPTER 2: RULE 110 (PROSECUTION OF OFFENSES)
I. INSTITUTION OF CRIMINAL ACTIONS
A. PURPOSE OF CRMINAL ACTION
 to determine the penal liability of the accused for having outraged the state
with his crime.
 FOUND GUILTY: punish him for it
 PARTIES:
a. People of the Philippines
b. Accused
c. Offended Party – ONLY witness for the state
B. HOW CRIMINAL ACTIONS ARE INSTITUTED
 PRELIMINARY INVESTIGATION IS REQUIRED – filing the complaint
with the proper officer for the purpose of conducting the requisite
preliminary investigation (Sec 1 Rule 110 ROC)
 PRELIMINARY INVESTIGATION NOT REQUIRED (2 ways) (Sec 1
Rule 110 ROC)
1. Filing the complaint/information directly with the Municipal Trial Court
and Municipal Circuit Trial Court
2. Filing the complaint with the office of the prosecutor
C. INSTITUTION OF CRIMINAL ACTIONS IN MANILA AND OTHER
CHARTERED CITIES
 SPECIAL RULE – filed with the office of the prosecutor UNLESS
otherwise provided in their charters (Sec 1 Rule 110 ROC)
D. NO DIRECT FILING IN THE REGIONAL TRIAL COURT AND
METROPOLITAN TRIAL COURT OF MANILA AND OTHER
CHARTERED CITIES
 WHY? Because its jurisdiction cover offenses which requires preliminary
investigation
 PRELIMINARY INVESTIGATION: conducted for offenses where the
penalty prescribed by law is at least 4 years, 2 months, 1 day
imprisonment.
a. JURISDICTION oF RTC : offense punishable with imprisonment
of more than 6 years.
b. JURISDICTION of MTC: offense punishable with imprisonment
not exceeding 6 years.
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CRIMINAL PROCEDURE (WILLARD RIANO)
c.JURISDICTION OF METROPOLITAN TRIAL COURT OF
MANILA: In Manila and Chartered cities, as a rule, fled with the
office of the prosecutor
 Chartered City vs Rules of Court = former shall prevail (substantive law)
E. EFFECT OF THE CRIMINAL ACTION ON THE PRESCRIPTIVE
PERIOD
 “institution of the criminal actions shall interrupt the period of prescription
of the offense unless otherwise provided in special laws (exception)”
a. Institution:
i. Filing of the information or complaint directly with the
Municipal Trial Courts and MCTC (prelim investigation
Not required)
ii. Filing with the office of the prosecutor (chartered cities)
iii. Based on jurisprudence: filing complaint for preliminary
examination or investigation interrupts the period of
prescription of the criminal responsibility
F. RULE ON PRESCRIPTION FOR VIOLATIONS OF SPECIAL LAWS
AND MUNICIPAL ORDINANCES
 ACT NO. 3326(as amended) governs period of prescription for violations
penalized by special and municipal ordinances.
 “PROCEEDINGS”: judicial proceedings NOT administrative proceedings
 PRESCRIPTION: begins from the commission of the crime OR from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
 Act no 3326 vs ROC : ROC prevails
 Investigation by the SEC shall interrupt the period of prescription because
“DOCTRINE OF PRIMARY JURISDICTION ”. Courts will not
determine a controversy involving a questions within the jurisdiction of the
administrative tribunal.
II. PROSECUTION OF CRIMINAL ACTION
A. WHO MUST PROSECUTE THE CRIMINAL ACTIONS; WHO
CONTROLS THE PROSECUTION
 GENERAL RULE: Public Prosecutor controls and directs prosecution of
criminal actions commenced either by a complaint of an information
 WHY?
a. Criminal offense is an outrage against the sovereignty of the state,
it necessarily follows that a representative of the state shall direct
and control the prosecution thereof.
b. Crime is a breach of security and peace of the people at large, an
outrage against the very sovereignty of the state
B. APPEARANCE OF A PRIVATE PROSECUTOR
DIATO2014NOTES
 Appointment of private prosecutor is done by the offended party and is the
mode by which the latter intervenes in the prosecution of the offense.
a. ALLOWED ONLY when civil action is instituted with the
criminal action (Sec 16 Rule 110)
b. NOT ALLOWED if civil action was instituted separately from
the criminal action.
c. Even if a civil action (independent civil action) is filed separately,
the civil liability in the criminal prosecution remains, and the
offended party may still intervene in the criminal action in order
to protect the remaining civil interest therein.
i. Independent civil actions:
1. Art. 32 CC: Crimes by public officer
2. Art 33 CC: Civil Action for damages
3. Art 34 CC: Crimes by police officers
4. Art 2176 CC: Quasi Delicts
C. EFFECT OF FILING AN INDEPENDENT CIVIL ACTION ON THE
RIGHT OF THE OFFENDED PARTY TO INTERVENE IN THE
PROSECUTION OF THE OFFENSE
 Institution of an independent civil action does NOT deprive offended party
of the right to intervene in the civil action through a private prosecutor
 GENERAL RULE When criminal action is instituted, the civil action for
the recovery of civil liability shall be deemed instituted with the criminal
actions. Only civil Liability of the accused arising from the offense
charged is deemed impliedly instituted with the criminal action
 EXCEPTION:
a. Offended party waives the civil action
b. Reserves the right t institute it separately
c. Institute the civil action prior to the criminal actions
 INDEPENDENT CIVIL ACTIONS
a. Art. 32 CC: Crimes by public officer
b. Art 33 CC: Civil Action for damages
c. Art 34 CC: Crimes by police officers
d. Art 2176 CC: Quasi Delicts
D. CONSEQUENCES OF THE RULE THAT A CRIMINAL ACTION IS
PROSECUTED UNDER THE DIRECTIO AND CONTROL OF THE
PUBLIC PROSECUTOR
 POWER OF THE PUBLIC PROSECUTOR
a. Determine whether a prima facie case exists (discretion of
whether, what and whom to charge)
b. Decide which of the conflicting testimonies should be believed
free from interference or control of the offended party
c. Subject only to the right against self-incrimination
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CRIMINAL PROCEDURE (WILLARD RIANO)
d. determine which witnesses to present in court (initial discretion to
determine which should be utilized by the government as a state
witness)
e. entitled to conducts its own case and to decide what witnesses to
call to support its charges.
f. public prosecutor may turn over the actual prosecution of the
criminal case to the private prosecutor
 EXECUTIVE DEPARTMENT OF THE GOVERNMENT: accountable
for the prosecution of crimes
 SUPREME COURT CANNOT order prosecution of a person against
whom the prosecutor does not find sufficient evidence
a. EXCEPTION: unmistakable showing of grave abuse of discretion
on the part of the prosecution.
 DOJ : government agency tasked to prosecute criminal cases before the
trial court. The DOJ is best suited to attest whether a similar or related
case has been filed or is pending in another court or tribunal.
a. NOTE: one person cannot conspire alone BUT as long as the
acquittal or death of a co-conspirator does not remove the basis of
a charge of conspiracy, one defendant may be found guilty of the
offense
 ABSENCE OF PUBLIC PROSECUTOR IN A TRIAL:
a. GENERAL RULE: PUBLIC PROSECUTOR should always be
present in a trial
i. presence of public prosecutor in the trial of a criminal
offense is necessary to protect the vital state interest,
foremost of which is its interest to vindicate the rule of
law.
E. PROSEUCTION OF A CRIMINAL ACTION IN THE MUNICIPAL
TRIAL COURT OR MUNICIPAL CIRCUIT TRIAL COURT
 Prosecuted under the direction and control of the prosecutor
 PROSECUTOR IS NOT AVAILABLE? May be prosecuted by
a. The offended party
b. Any peace officer
c. Public officer charged with the enforcement of the law violated
F. PROSECUTION FOR VIOLATION OF SPECIAL LAWS
 Prosecuted pursuant to the provisions of the said law.
III. INTERVENTION OF THE OFFENDED PARTY IN THE PROSECUTION
OF THE CRIMINAL ACTION
A. INTERVENTION OF THE OFFENDED PARTY
 Civil Liability includes
a. Restitution
b. Reparation for damages caused
DIATO2014NOTES
c. Indemnification for consequential damages
 Civil Liability is NOT extinguished even if the offender has already served
his sentence (deprivation of liberty and other rights)
 CIVIL LIABILITY BE INSTITUTED WITH THE CRIMINAL ACTION
a. The offended party is allowed to intervene in the prosecution
b. If civil liability was waved upon institution of the criminal action
then there will be no basis for the intervention of the offended
party through his COUNSEL or PRIVATE PROSECUTOR.
i. Presence of private prosecutor may be objected by the
prosecution of the civil liability was waived.
 CRIMINAL ACTION GIVES RISE TO AN INDEPENDENT CIVIL
ACTION (physical injury, fraud, defamation or act constituting a crime
also constitutes a quasi – delict)
a. The independent civil action is DISTINCT SOURCES from civil
liability arising from the criminal action (felony = RPC).
b. RULE: filing a suit based on a quasi-delict theory during the
pendency of the criminal proceeding should NOT PREVENT the
intervention of the offended party in the prosecution of the
offense because there still exists a civil liability under the RPC.
B. WHEN A PRIVATE PROSECUTOR MAY PROSECUTE A CASE
EVEN IN THE ABSENCE OF THE PUBLIC PROSECUTOR
 Requirements:
a. In the absence of the public prosecutor
b. Authorized to do so in writing
c. Authorized by the Chief of the Prosecution Office or the Regional
State Prosecutor
d. Approved by the Court
 Why?
a. Public prosecutor has heavy work schedule
b. Lack of public prosecutors
C. EXTENT OF THE AUTHORITY GIVEN TO THE PRIVATE
PROSECUTOR WHEN DULY AUTHORIZED TO PROSECUTE THE
ACTION
 He can continue to prosecute the case up to the end of the trial even in the
absence of a public prosecutor
 UNLESS the authority is revoked or otherwise withdrawn
IV. PROSECUTION OF PRIVATE CRIMES
 PRIVATE CRIMES: adultery, concubinage, seduction, abduction, acts of
lasciviousness, RA 7610, defamation (in relation to private crimes)
A. PROSECUTION OF ADULTERY AND CONCUBINAGE
 GENERAL RULE: not be prosecuted EXCEPT upon a complaint filed by
the offended spouse.
9
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
ACTION CANNOT BE INSTITUTED IF: b.
Filed against ALL PERSONS WHO APPEAR TO BE
a. There is no complaint from offended spouse RESPONSIBLE FOR THE CRIME
b. if it is instituted against one party alone (should be against both c. PRIVATE OFFENDED PARTIES are only witnesses for the
guilty parties unless one of them is dead) prosecution.
c. if it is shown that the offended party has consented or pardoned i. May not appeal the dismissal or acquittal of the accused
the offenders (expressed or implied) because the aggrieved party is the People of the
B. PROSECUTION OF SEDUCTION, ABDUCTION AND ACTS OF Philippines
LASCIVIOUSNESS ii. May appeal the civil aspect of the case and file a special
 GENERAL RULE: cannot be prosecuted EXCEPT upon a complaint filed civil action questioning the decisions of the court on
by jurisdictional grounds. This will be prosecuted in his
a. Offended party (even if he/she is a minor) own personal capacity.
b. Her parents d. Dismissal by RTC on criminal cases can only be appealed by the
c. Grandparents OSG
d. Guardian i. Only the OSG can bring or defend actions on behalf of
 ACTION CANNOT BE INSTITUTED IF: the Republic or represent the state in a criminal
a. Offender was EXPRESSLY pardoned. proceedings pending in the SC or CA
C. EFFECT OF RA 7610 (Special Protection of Children Against Child B. INFORMATION
Abuse, Exploitation and Discrimination Act)  Accusation in writing
 Who may file? a. NOT REQUIRED to be SWORN
a. Offended party  Charging a person with an offense
b. Parents / guardians  Subscribed by the prosecutor (ONLY PROSECUTOR)
c. Ascendants/collateral relative within the 3rd degree of  Filed with the court
consanguinity  IN WHOSE NAME AND AGAINST WHOM?
d. Officer/social worker/representative of a license child caring a. Filed in the name of PEOPLE OF THE PHILIPPINES
institution b. Filed against ALL PERSONS WHO APPEAR TO BE
e. Officer/social worker of DSWD RESPONSIBLE FOR THE CRIME
f. At least 3 concerned, responsible citizens where the violation
occured COMPLAINT INFORMATION
D. PROSECUTION OF DEFAMATION SWORN WRITTEN STATEMENT ACCUSATION IN WRITING
 Defamation: imputation of offenses under private crimes.  Must be SWORN (under  Requires no oath
 Criminal actions shall be brought at the instance of and upon the complaint oath) because the prosecutor
filed by the offended party. ONLY the offended part can initiate the filing the information is
criminal action acting under oath of his
V. THE COMPLAINT AND INFORMATION office
A. COMPLAINT Subscribed by the: Subscribed by the:
 Sworn written statement  Offended party  prosecutor
 Charging a person with an offense  Any peace officer
 Subscribed by the offended party/any peace officer/other public officer  Other public officer
charged with the enforcement of the law violated. charged with the
 IN WHOSE NAME AND AGAINST WHOM? enforcement of the law
a. Filed in the name of PEOPLE OF THE PHILIPPINES violated
C. INFIRMITY (lacks/absence) OF SIGNATURE IN THE INFORMATION

10
CRIMINAL PROCEDURE (WILLARD RIANO)
 Valid Information confers jurisdiction on the court over the person accused
and subject matter.
 INFIRMITY IN THE INFORMATION (ex. Lack of authority if the officer
signing) cannot be cured by silence, acquiescence, or even by express
consent.
D. SUFFICIENCY OF THE COMPLAINT OF INFORMATION
 REQUIREMENTS
a. Name of the accused and if there is more than one person, all of
them shall be included in the complaint or information
b. Designation of the offense given by the statute
c. Acts or omissions complained of as constituting the offense
d. Name of the offended party
e. Approximate date of the commission of the offense
 Place where the offense was committed
E. TEST FOR SUFFICIENCY OF THE COMPLAINT OR INFORMATION
 Whether the crime is described in intelligible terms with such particularity
as ti apprise (give information) the accused with reasonable certainty. It
would enable the accused to suitably prepare for his defense.
F. QUESTIONING THE INSUFFICIENCY OF THE COMPLAINT OF
INFORMATION
 Sufficiency of an information may be assailed but it is not absolute.
 RAISE OBJECT BEFORE: arraignment or during trial,
a. When the accused voluntarily entered a plea when arraigned or
participated in the trial, accused is deemed to have waived his
right to object.
G. OBJECTIONS AS TO FORM
 Objection relation to the form of the complaint/information cannot be
made for the first time on appeal.
a. REMEDY that the accused could have availed before
arraignment: bill of particulars or for the quashal of the
information
 Failure to object would mean that the accused has waived his objections to
any formal defect in the information
H. DATE OF THE COMMISSION OF THE OFFENSE
 Sec 11 NOT NECESSARY to state in the complaint or information the
precise date the offense was committed EXCEPT when the date of
commission is a material element of the offense.
I. DETERMINATION OF THE NATURE AND CHARACTER OF THE
CRIME
 Character of the crime is determined by the recital of the ultimate facts and
circumstances in the information.
DIATO2014NOTES
 What is CONTROLLING is the allegation of the facts in the information
that comprise a crime and adequately describes the nature and cause of the
accusation against the accused.
J. HOW TO STATE THE NAME OF THE ACCUSED (natural person)
 Sec 7 Rule 110: Designating the name of the accused
a. State the name and surname of the accused or any appellation or
nickname by which he has been or is known
b. NAME CANNOT BE ASCERTAINED: described under a
fictitious name and a description of the accused with a statement
that his true name is unknown.
c. TRUE NAME IS DISCLOSED or BECOMES KNOWN: his true
name shall be inserted in the complaint of information and in the
records of the case
 Mistake in the name does not equate to a mistake in the identity of the
accused when sufficient evidence is adduced to show that the accused is
pointed as one of the perpetrators of the crime. (accused must be proved)
K. HOW TO STATE THE NAME OF THE OFFENDED PARTY WHICH
IS A JURIDICAL PERSON
 Sufficient to state its name or any name or designation by which it is
known or by which it may be identified. (without averring that it is a
juridical person)
L. RULE IF THE NAME OF THE OFFENDED PARTY IS UNKNOWN IN
OFFENSES AGAINST PROPERTY
 Must be described with such particularity as to properly identify the
offense charged
M. DESIGNATION OF THE OFFENSE
 Allegations in the information determine the nature of the offense.
 It is sufficient that the offense be described with particularity to make sure
the accused fully understands what he is being charged with.
 Rules in designating the offense:
a. Name given to the offense by statute must be stated. If there is no
designation then reference must instead be made to the section or
subsection punishing it.
b. Averment of the acts or omission constituting the offense
c. Specify qualifying and aggravating circumstances of the offense
N. EFFECT OF FAILURE TO DESIGNATE THE OFFENSE BY THE
STATUTE OR FAILURE TO MENTION THE PROVISION VIOLATED
 Failure to designate the offense or to mention the specific provision DOES
NOT vitiate the information if the facts alleged clearly recite the facts
constituting the crime charged.
11
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
 There is nothing in the Rules of Court which specifically requires that the S. DUPLICITY OF THE OFFENSE
information must state the particular law under which the accused is  GENERAL RULE: a complaint or information much charge only one
charged in order for it to be considered sufficient and valid. offense
O. EFFECT OF FAILURE TO SPECIFY THE CORRECT CRIME a. EXCEPTION: the law prescribes a single punishment for various
 Will not bar conviction of the accused offenses
 The crime committed is determined by the recital of the ultimate facts and  OBJECT must be timely interposed whenever a complaint or information
circumstances in the complaint or information. charges more than one offense. OBJECTION SHOULD BE BEFORE
P. STATEMENT OF THE QUALIFYING AND AGGRAVATING TRIAL on the ground of duplicity
CIRCUMSTANCES a. failure to object constitutes waiver and the court may convict him
 One cannot be held liable for an offense grave than that for which he was of as many offense as are charged and proved.
indicated. It would be denial of the right of the accused to be informed of VI. VENUE OF THE CRIMINAL ACTIONS
the charges against him, and consequently, a denial of due process. A. WHERE to INSTITUTE
 The information must be state the qualifying and aggravating  Instituted and tried in the court of the municipality or territory where
circumstances to be appreciated and be considered in the imposition of the a. Offense was committed
penalty. b. When any of its essential ingredients occurred (subject to existing
 Descriptive words such as “qualifying” “aggravating” need not precede the laws)
offense to properly qualify it, what is important is the specific allegation  Written defamation
attendant circumstances which adds the essential elements raising the a. Private / Public Official – CFI (RTC) where the libelous article is
crime to a higher category is present. (example : “conspiracy” = printed and first published.
“participate in and facilitate…” i. It must state the libelous material was either printer or
 EXCEPTION: relationship in rape is qualifying, specific relationship in first published in the place of the filing of the
terms of consanguinity should be alleged in the information information.
Q. CAUSE OF ACCUSATION b. Private individual – CFI (RTC) of the province where he actually
 Allegations of facts constituting the offense charged are substantial matters resided at the time of the commission of the offense
and an accused’s right to question his conviction based on facts alleged in c. Public Officer in Manila – CFI (RTC) of Manila
the information cannot be waived. d. Public Officer outside Manila – CFI (RTC) of the province / city
 Accused cannot be convicted of an offense unless it is charged in the where he held office at the time of the commission of the offense
information on which he is tried or necessarily included therein. 
 Sufficient to enable a person of common understanding to know the B. RULE WHEN OFFENSE IS COMMITED IN A TRAIN, AIRCRAFT OR
following: VEHICLE (COURSE OF THE TRIP)
a. Offense being charged  Tried in the court of any municipality or territory where such train, aircraft
b. Acts or omissions complained of as constituting the offense or vehicle
c. Qualifying and aggravating circumstances 1. Passed during its trip
 DETERMINES NATURE AND CAUSE : actual recital of facts stated in 2. Place of departure
the information or complaint. 3. Place of arrival
R. HOW TO STATE THE DATE OF THE COMMISSION OF THE  RULE WHERE OFFENSE IS COMMITTED IN BOARD A VESSEL
OFFENSE (Offense is committed during the voyage)
 Sec 111 Rule 110 : not necessary to state the precise date the offense was  Criminal action shall be instituted and tried in:
committed because the offense may be alleged to have been committed on 1. The court of first port of entry
a date as near as possible to the actual date of its commission EXCEPT the 2. Municipality or territory where the vessel passed during its voyage
precise date the offense was committed is a material ingredient of the *** subject to the generally accepted principles of international law***
offense. C. RULE WHEN THE OFFENSE IS COVERED BY ART. 2 OF THE RPC

12
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
 Cognizable by the court where the criminal action is first filed. a. New allegations which relate only to the range of the penalty that
D. HOW TO STATE THE PLEA OF THE COMMISSION OF THE the court might impose in the event of conviction
OFFENSE b. An amendment which does not charge another offense different
 Sufficient if it can be understood from the allegations of the complaint or or distinct from that charged in the original one
information that the offense was committed or some of its essential c. Additional allegations which do not alter the prosecution’s theory
elements occurred at some place within the jurisdiction of the court of the case so as to cause surprise to the accused and affect the
EXCEPT if the particular place where the offense was committed is an form of defense he has or will assume
essential element of the offense or is necessary for its identification. d. An amendment which does not adversely affect any substantial
VII. AMENDMEND OR SUBSTITUTION OF THE COMPLAINT OR right of the accused
INFORMATION e. An amendment that merely adds specifications to eliminate
A. AMENDMENT OF THE INFORMATION OR COMPLAINT BEFORE vagueness in the information and not to introduce new material
PLEA; NO NEED FOR LEAVE and facts.
 May be amended in form or in substance without the need for leave of E. SUBSTITUTION OF COMPLAINT OR INFORMATION
court(permission from the court to take some action).  Complaint or information may be substituted if it appears at any time
B. WHEN LEAVE OF COURT IS REQUIRED EVEN IF THE before judgment that a mistake has been made in charging the proper
AMENDMENT IS MADE BEFORE PLEA offense.
1. Leave of court is required even if a. Court dismisses the original complaint or information once the
a. Amendment downgrades the nature of the offense charged new one charging the proper offense is filed provided the accused
b. Amendment excludes any accused from the complaint or will not be placed in double jeopardy
information  Dismissal of the original is subject to the provision of Sec 19 of Rule 119.
2. Requires a motion by the prosecutor with the notice to the offended party a. The accused shall not be discharged if there appears good cause
3. Court is mandated by the rule to state its reasons in resolving the motion of to detain him.
the prosecutor and to furnish all parties, especially the offended party, of F. DISTINCTION BETWEEN SUBSTITUTION AND AMENDMENT
copies of its order AMENDMENT SUBSTITUTION
C. RULE AS TO AMENDMENT MADE AFTER THE PLEA OF THE Either formal or substantial changes Involves a substantial change from
ACCUSED the original charge
 ONLY FORMAL AMENDMENT: allowed after plea BEFORE PLEA: effected without With leave of court as the original
 FORMAL AMENDMENT may only be made under 2 conditions leave of court information has to be dismissed
1. Leave of court must be secured form only New information
2. Amendment does not cause prejudice to the rights of the accused  No need for another  Another preliminary
 AMENDMENT IN SUBSTANCE : not allowed after plea preliminary investigation is
D. WHEN AN AMENDMENT IS FORMAL OR SUBSTANTIAL investigation and the entailed and the
 TEST: retaking of the plea of accused had to plead
a. Whether a defense under the information as it originally stood the accused anew
would be available after the amendment is made, and whether any Same offense charged in the original Requires or presupposes that the
evidence defendant might have would be equally applicable to the information or to an offense which new information involves a
information in the one form as in the other. necessarily included or is necessarily different offense which does not
b. Nature of the crime alleged does not affect the essence of the included in the original charge, if include or is not necessarily
offense or create surprise or deprive the accused of an opportunity there is substantial amendment after included in the original charge, no
to meet the new averment had each been held to be one of form plea double jeopardy may be double jeopardy
and not of substance invoked.
 Example of FORMAL AMENDMENTS

13
CRIMINAL PROCEDURE (WILLARD RIANO)
CHAPTER 3: PROSECUTIO OF CIVIL ACTION (RULE 111)
IMPLIED INSTITUTION OF THE CIVIL ACTION WITH THE CRIMINAL
ACTION
- When a criminal action is instituted, the civil action for the recovery of the civil
liability arising from the offense charged shall be deemed instituted with the
criminal action (Sec 1[a] Rule 111)
- Every person criminally liable is also civilly liable (Art 100, RPC)
- EXCEPT:
o When no actual damage results from an offense (espionage, violation
of neutrality, flight to an enemy country, crimes against popular
representation
- WHY: separate civil action would be costly, burdensome and time-consuming
and further delay the final disposition of the case.
- WAIVE CIVIL ACTION? (When)
o Waives the civil action
o Reserve the right to institute it separately
o Institute the civil action prior to the criminal action
- MERGING THE CIVIL ACTION AND CRIMINAL ACTION ONCE
SEPARATED ALLOWED? Yes, the law allows the merger of the criminal and
the civil actions to avoid multiplicity of suits.
PURPOSES OF THE CRIMINAL AND CIVIL ACTIONS
- PRIME PURPOSEOF A CRIMINAL ACTION: punish the offender in order to
deter him and others from committing the same or similar offense, to isolate
him from society, reform, and rehabilitate him
- GENERAL RULE: maintain social order
- PURPOSE OF A CIVIL ACTION: resolution, reparation or indemnification of
the private offended party for the damage or injury sustained by reason of the
delictual or felinous act of the accused.
JUDGEMENT OF CONVICTION INCLUDES A JUDGEMENT ON THE CIVIL
LIABILITY
- IN CASE OF CONVICTION: state the civil liability or damages caused by the
wrongful act or omission to be recovered from the accused by the offended
party.
WHO THE REAL PARTIES IN INTEREST ARE IN THE CIVIL ASPECT OF
THE CASE
- Who are the parties
o Offended party
o Accused
- Both may appeal the civil aspect of the judgment despite the acquittal of the
accused
- PUBLIC PROSECTUR: no interest in appealing the civil aspect of the a
decision. ACQUITTAL ENDS HIS WORK.
RULE APPLICABLE
DIATO2014NOTES
- The issue in a criminal case being the civil liability of the accused, the
governing law is the Rules of Criminal Procedure.
WHEN A CIVIL ACTION MAY PROCEED INDEPENDENTLY;
INDEPENDENT CIVIL ACTIONS AND QUASI- DELICTS
- GENERAL RULE: the civil liability of the accused arising from the crime
charged is deemed included in a criminal action. (2000 Rules of Criminal
Procedure)
- Civil Action that is instituted with the Criminal actions are the civil liability
arising from or flowing from the offense charged.
- Independent Civil Actions referred to are:
o Articles 32 – Violation of Constitutional Right
o Articles 33 – Fraud, defamation, physical injuries
o Articles 34 – Police refuses / fails to provide protection
o Article 2176 – Quasi – delicts / Culpa Aquiliana
 Is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code.
- Article 32, 33,34 – sources of obligation from direct provisions of law
- Article 2176 – source of obligation distinct from a crime
- WHAT IS BEING AVOIDED? The law proscribes is double recovery, to
recover damages twice for the same actor omission of the defendant.
CONSEQUENCES OF THE INDEPENDENT CHARACTER OF ACTIONS
UNDER ARTICLES 32, 33, 34 AND 2176 OF THE CIVIL CODE
- Independence Civil action – this shall proceed from the criminal action
- QUANTUM EVIDENCE : preponderance of evidence
- Need not reserve the right to file a separate civil action since they are not
deemed included
- Criminal Liability + Civil Liability + Independent Civil Action
WHEN THERE IS NO IMPLIED INSTITUTION OF THE CIVIL ACTION
- When there is no implied institution of the civil action
o Offended party waives the civil action
o Party reserves the right to institute the civil action separately
o Institutes the civil action prior to criminal action
- The civil liability arising from the offense shall be deemed instituted with the
criminal action.
RESERVATION OF THE CIVIL ACTION
- Should be instituted BEFORE:
o Before instituting the criminal action
o Before the prosecution starts presenting its evidence : to give the
offended party a reasonable opportunity to make such reservation.
NO RESERVATION OF THE CIVIL ACTION IN BATAS PAMBANSA BLG. 22
- ONLY ALLOW SEPARATE CIVIL ACTION WHEN IT IS FILED BEFORE
THE CRIMINAL ACTION.
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CRIMINAL PROCEDURE (WILLARD RIANO)
o WHY? Help declog the courts dockets which are filled with BP22
cases as creditors actually use the courts as COLLECTORS
- Upon Filing of the Joint: offended party shall PAY IN FULL the filing fees
based on the amount of check involved = actual damages claimed.
WHEN THE SEPARATE CIVIL ACTION IS SUSPENDED
- After the criminal action is commenced, the civil action cannot be instituted or
will be suspended in whatever stage it may be found (before judgment of
merits in the civil case) until the final judgment of the criminal action.
- Preference is given to the resolution of the criminal action
CONSOLIDATION OF THE CIVIL ACTION WITH THE CRIMINAL ACTION
- The offended party may move for consolidation by MOTION FOR
CONSOLIDATION filed BEFORE JUDGMENT on the merits in the civil
action.
- If civil action was commenced before criminal action: automatically reproduce
evidence in the criminal action without prejudice to the right to cross examine
the witnesses presented by the offended party in the criminal case.
SUSPENSION OF THE PERIOD OF PRESCRIPTION
- Prescriptive period of the civil action shall be tolled during the pendency of the
criminal action
WHEN NO RESERVATION IS REQUIRED; WHEN CIVIL ACTION IS NOT
SUSPENDED
- Civil Action under Article 32,33,34,2176 : NO NEED TO RESERVE the filing
of a separate civil action
- The independent civil action is NOT INSTITUTED with the criminal action
and they can proceed independently with the criminal action when instituted.
COUNTERCLAIM, CROSS-CLAIM, THIRD PARTY CLAIM IN A CRIMINAL
ACTION
- NO counterclaim, cross-claim, third party claim in a criminal action
o WHY? Criminal action is not the proper proceedings to determine
civil liability. Criminal case is limited to determining the guilt of the
accused.
RULES ON FILING FEES
- NO FILING FEES: actual damages claimed
o EXCEPT:
 BP22: filing fees paid based on the amount of the check and
shall be paid in full
 ESTAFA: filing fees shall be based on the amount involved.
EFFECT OF DEATH OF THE ACCUSED ON THE CIVIL ACTION
- AFTER ARRAIGNMENT AND DURING PENDENCY OF THE CRIMINAL
ACTION
o Civil liability of the offended party is extinguished BUT the
independent civil actions may be continued against the estate or legal
representatives of the accused.
DIATO2014NOTES
o Substitution/legal representative appear and be substituted should
appear 30days from notice
- BEFORE ARRAIGNMENT
o Case be dismissed but the offended party may file the proper civil
action against the estate of the deceased.
- PENDENCY OF HIS APPEAL IN THE SC
o Totally extinguished his criminal liability, likewise extinguish the
civil liability that was based exclusively on the crime (delict) for
which the accused was convicted.
o Only the civil liability not based on the delict could be recovered in a
separate civil action.
NOVATION: EXTINGUISHMENT OF CRIMINAL LIABILITY
- Novation does not extinguish criminal liability
- ESTAFA: not affected by a compromise or novation.
o WHY? Estafa is a public offense which must be prosecuted and
punished by the government on its own motion even though complete
reparation should have been made.
- REIMBURSMENT of or COMPROMISE only affect the civil liability.
EFFECT OF ACQUITTAL OR THE EXTINCTION OF THE PENAL ACTION
ON THE CIVIL ACTION OR CIVIL LIABILITY
- Extinction of the penal action does not carry with it the extinction of the civil
action
- ACTION BASED ON DELICT: deemed extinguished if there is a finding in a
final judgment in the criminal action that the act or omission from which the
civil liability may arise did not exist
- Acquittal BUT may still be adjudged civilly liable
o Acquittal is based on reasonable doubt as only preponderance of
evidence is required
o Court declares that the liability of the accused is only civil
o Civil liability of the accused does not arise from or is not based upon
the crime of which the accused was acquitted
EFFECT OF PAYMENT OF THE CIVIL LIABILITY
- Does not extinguish criminal liability
- Compromise shall not extinguish the public action for the imposition of the
legal penalty
EFFECT OF JUDGEMENT IN THE CIVIL CASE ABSOLVING THE
DEFENDANT
- Is not a bar to a criminal action against the defendant for the same act or
omission subject of the civil action
SUBSIDIARY LIABILITY OF EMPLOYER
- Before an employers’ liability is enforced the following must be proven:
o Indeed employers of the convicted employees
o Engaged in some kind of industry
15
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
o Crime was committed by the employees in the discharge of their WHERE TO FILE THE PETITION FOR SUSPENSION
duties - Petition for suspension does not required that the criminal case be already filed
o Execution against the latter has not been satisfied in due to insolvency in court
- Determined: in the same criminal action with due notice to the employer, as - Petition for suspension is not to be filed in the civil case but in the criminal
part of the proceedings for the execution of the judgment. case
CONCEPT OF A PREJUDICIAL QUESTION - FILED in the office of the prosecutor conducting the preliminary invenstigation
- PREJUDICIAL QUESTION is an issue involved in a civil case which is CASE ILLUSTRATION
similar or intimately related to the issue raised in the criminal action, the
resolution of which determines whether or not the criminal action may proceed
- The jurisdiction to try and resolved the prejudicial question has been LODGED
IN ANOTHER TRIBUNAL, the second case may be suspended.
REASON FOR THE PRINCIPLE OF PREJUDICIAL QUESTION
- Avoid two conflicting decisions in the civil case and in the criminal case
REQUISITES FOR A PREJUDICIAL QUESTION
- Following are the requisites:
o Civil case involves facts intimately related to those upon which the
criminal prosecution was based
o Resolution of the issue/s raised in the civil action, the guilt or
innocence of the accused would necessarily be determined
o Jurisdiction to try said question must be lodged in another tribunal.
- NOT BE INVOKED WHEN:
o Both cases are criminal.
o Both cases are civil.
o Both cases are administrative.
o One case is administrative and the other is civil.
o One case is administrative and the other criminal.
- Prejudicial question is one that arises in the civil case. It must be instituted
prior to the institution of the criminal action
- The issue in the civil case should be “determinative” of the issue in the criminal
case
EFFECT OF THE EXISTENCE OF A PREJUDICIAL QUESTIONS;
SUSPENSION OF THE CRIMINAL ACTION
- Filing of a PETITION before the suspension of the criminal actions is allowed,
when there is a pending prejudicial question.
o BUT the civil action should have commenced before the criminal
action
- Determination of the pendency of the civil action should be made at the first
instance NOT BEFORE SC in an appeal from civil action.
- Need for filing of a petition finds support in jurisprudence and made only upon
petition.
SUSPENSION DOES NOT INCLUDE DISMISSAL
- Suspension DOES NOT prescribe the dismissal
- Suspension shall be made upon filing of a petition for suspension
16
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
CHAPTER 4: PRELIMINARY INVESTIGATION o it is clarified that like judicial bodies, the prosecutor is an office
NATURE OF PRELIMINARY INVESTIGATION; PURPOSE in the executive department exercising powers akin to those of
- Sec 1 of Rule 112 provides: a court. But here is where the similarity ends. A closer scrutiny
o “…Preliminary investigation is an inquiry or a proceeding the will show that preliminary investigation is very different from
purpose of which is to determine whether there is sufficient other quasi-judicial proceedings.
ground to engender a well-founded belief that a crime has o Also had similar pronouncements in SANTOS vs GO :
been committed and the respondent is probably guilty thereof, prosecutor does not perform acts of a quasi- judicial body.
and should be held for trial…” RIGHT TO A PRELIMINARY INVESTIGATION; WAIVABLE
- Mere INQUIRY or a PROCEEDING not a trial - MAY BE WAIVED
- DETERMINE: - When?
1. Crime has been committed o For failure to invoke the right prior to or at the time of the
2. There is PROBABLE CAUSE to believe that the accused is guilty. plean
- ULTIMATE PURPOSE: to secure the innocent against hasty, malicious PRELIMINARY INVESTIGATION VS PRELIMINARY EXAMINATION
and oppressive prosecution and to protect him from an open and (PRELIMINARY INQUIRY)
public accusation of a crime, from the trouble, expenses and anxiety of PRELIMINARY INVESTIGATION PRELIMINARY
a public trial, and also to protect the State from useless and expensive INQUIRY/EXAMINATION
prosecutions. - WHO CONDUCTS? - WHO CONDUCTS? JUDGE
NATURE OF THE RIGHT TO A PRELIMINARY INVESTIGATION PROSECUTOR - To determine probable
- NOT REQUIRED by the constitution, not a fundamental right nor rights - To ascertain whether the cause for the issuance of a
guaranteed in the Bill of Rights alleged offender should be warrant of arrest
- Right is of STATUTORY CHARACTER and may be invoked only when held for trial, to be - Judicial function
specifically created by the statute subjected to the expense,
- Since it is a statutory right then it becomes a component of DUE rigors and embarrassment
PROCESS IN CRIMINAL JUSTICE. of trial or if the offender is
- It is a SUBSTANTIVE RIGHT to be released
- It effect a realistic judicial appraisal of the merits of the case - Executive in nature
- Authority of a prosecutor or an investigating officer to conduct a - Basis for distinction: sound policy
preliminary investigation is no less than that of a municipal judge or o Judges would not be unduly laden with the preliminary
even a regional trial court judge investigation instead of concentrating on hearing and deciding
o NOT A JUDGE but must be considered to be a quasi-judicial cases filed before their courts.
officer PROBABLE CAUSE IN PRELIMINARY INVESTIGATION
- JUDICIAL PROCEEDING happens when there is an opportunity to be - DEFINITION
heard and for the production of and weighing of evidence, and a o existence of such facts and circumstances as would lead a
decision is rendered thereon. person of ordinary caution and prudence to entertain an
- BAUTISTA vs CA – honest and strong suspicion that the person charged is guilty of
o it was held that a prosecutor is not a quasi judicial body the crime subject of the investigation

17
CRIMINAL PROCEDURE (WILLARD RIANO)
o not need clear and convincing evidence of guilt as investigation
officer acts upon reasonable belief.
o Probability of guilt MORE THAN bare suspicion LESS than
evidence to justify a conviction.
- Finding probable cause merely binds over the suspects to stand trial
and is not a pronouncement of guilt.
- TEST IN A MALICIOUS PROSECUTION CASE:
o Whether sufficient facts exist which show that, in bringing the
criminal action, complainant acted with probable cause.
KINDS OF DETERMINATION OF PROBABLE CAUSE
- 2 kings of determination of probable cause :
1. EXECUTIVE DETERMINATION OF PROBABLE CAUSE
o Done during preliminary investigation
o Pertains to the public prosecutor
 Determine whether probable cause exists
 To charge those whom he believes to ave committed
the crime as defined by the law
o Has quasi – judicial authority to determine whether or not a
criminal case must be filed in court
2. JUDICIAL DETERMINATION OF PROBABLE CAUSE
o Made by the judge
o To ascertain whether a warrant of arrest should be issued
against the accused.
o Judge must satisfy himself that based on the evidence
submitted there is necessity for placing the accused under
custody in order not to frustrate the ends of justice
o NO PROBABLE CAUSE – judge cannot be forced to issue the
arrest warrant.
- Thus, absent a finding that an information is invalid on its face or that
the prosecutor committed manifest error or grave abuse of discretion,
a judge’s determination of probable case is limited only to the judicial
kind or for the purpose of deciding whether a warrant should be
issued.
- NOTE: judges refers to “facts and circumstances that would lead a
reasonably discreet and prudent man to believe that an offense has
been committed by the person arrested”
DIATO2014NOTES
o No technicality should be resorted but on the calculus of
common sense which all reasonable men have an abudance
CASES REQUIRING A PRELIMINARY INVESTGATION
- REQUIRED : before the filing of a complaint or information for an
offense where the law prescribes a penalty of at least 4 years 2 months
and 1 day without regard to the fine
- RA7691
o Expanded and included Municipal Trial Court to take cognizant
of offenses within the jurisdiction of the RTC.
o Some offenses which were before were not covered by the
required preliminary investigation are now subject to
preliminary investigation as long as it is punishable by 4 years 2
months and 1 day.
PROCEDURE FOR CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
- NOT REQUIRED Preliminary Investigation because penalty prescribed
by law is less than 4years 2 months and 1 day. 2 ways to initiate
criminal action
1. Filing the complaint directly with the prosecutor
2. Filing the complaint or information with the Municipal Trial Court
DIRECT FILING WITH THE PROSECUTOR
- Filed with the prosecutor (also as in Manila and other chartered cities)
1. Address of the respondent shall be indicated in the complaint
2. Establish probable cause, the complaint shall be accompanied by:
a. Affidavit of complainant
b. Affidavits of the complainant’s witnesses
c. Other supporting documents
d. Appropriate copies of the above as there are respondents + 2
for the official files must be submitted
e. Affidavits shall be subscribed and sworn before any prosecutor
or government official authorized to administer oaths, 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
- Prosecutor shall act on complaint based on the affidavits and other
supporting documents submitted WITHIN 1- DAYS FROM ITS FILING.
DIRECT FILING WITH THE MUNICIPAL TRIAL COURT
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CRIMINAL PROCEDURE (WILLARD RIANO)
1. Directly filed with MTC and involves an offense punishable by 4 years 2
months and 1 day : procedure and requirements under Sec 3 (a) Rule
112 shall be observed, in the same way as when the complaint is filed
directly with the prosecutor.
2. WITHIN 10 days
- the judge after personally evaluate the evidence or personally
examine in writing and under oath the complainant and his witnesses
in the form of searching questions and answers
a. JUDGE FINDS NO PROBABLE CAUSE - dismiss the same
b. JUDGE DESIRES TO FURTHER DETERMINE EXISTENCE OF
PROBABLE CAUSE – may require the submission of additional
evidence within 10days from notice.
i. Still finds no probable cause : dismiss the case within
10days from submission of additional evidence.
c. JUDGE FINDS PROBABLE CAUSE
i. Issue a warrant of arrest
 Not MANDATORY and is to be issued if there is
necessity of placing the accused under
immediate custody.
ii. Already been arrested : issue a commitment order
iii. Issue a summon : be issued if the judge is satisfied that
there is no necessity for placing the accused under
custody
WHEN PRELIMINARY INVESTIGATION IS NOT REQUIRED EVEN IF THE OFFENSE
IS ONE WHICH NORMALLY REQUIRES A PRELIMINARY INVESTIGATION
- INQUEST PROCEEDING: PERSON ARRESTED LAWFULLY WITHOUT A
WARRANT BUT REQUIRES PRELIM. INV.
o An information or complaint may be filed against him without
a need for a prelim inv.
o INQUEST PROCEEDINGS shall be made if he was lawfully
arrested
o Lawfully arrested : examples are in flagrante delicto
1. Arrested in a place where in inquest prosecutor is available
o In inquest will be conducted instead of a preliminary
investigation
2. Arrested in a place where inquest prosecutor is unavailable
DIATO2014NOTES
o Complaint may be filed directly with the proper court by the
offended party or a peace officer on the basis of the affidavit of
the offended party or arresting officer or person
PERSON ARRESTED LAWFULLY WITHOUT A WARRANT MAY ASK FOR A
PRELIMINARY INVESTIGATION
- Sec 6 Rule 112
o INQUEST is a proceeding which shall normally apply when a
persons is lawfully arrested without a warrant
o Accused MAY ASK for a preliminary investigation
 Should be done BEFORE the complaint of information
is filed
 Must sign a WAIVER of the provisions of Article 125 of
the RPC (Delay in the delivery of the detained persons
to proper judicial authority), signed by the arrested
and in the PRESENCE OF HIS COUNSEL (RA7438 amend
RPC Art 125)
 Prelim inv. Must be terminated 15 days from its
inception
 IF A COMPLAINT OR INFORMATION HAS BEEN FILED
 The person accused may still ask for a
preliminary investigation within 5 days from
the time he learns of its filing with the same
right to adduce evidence in his defense under
Rule 112
 The court no assumes jurisdiction over the
case
 MOTION TO HOLD PRELIMINARY
INVESTIGATION – should be addressed to the
court. “Motion for Re-investigation”
BAIL FOR A PERSON LAWFULLY ARRESTED DURING THE PRELIMINARY
INVESTIGATION
- Waiver of Art 125 RPC does not bar him from applying for bail.
- Even no information has not yet been filed the arrested person may
apply for bail.
- Right to Bail is supported by Sec 6 Rule 112 and Sec 17(c) of Rule 114
- Should be APPLIED FOR AND ISSUED by the court where the person
arrested is held.
19
CRIMINAL PROCEDURE (WILLARD RIANO)
QUESTIONING THE ABSENCE OF PRELIMINARY INVESTIGATION
- To question the regularity or absence of preliminary investigation must
be done BEFORE he enters his plea.
o Court shall resolve the matter as early as practicable but not
later than the start of the trial
- After a plea is made an accused is deemed to have forgone his right to
raise the absence of preliminary investigation or any irregularity.
- MOTION TO QUASH: NOT a proper remedy because it is not one of the
grounds under Sec 3 Rule 117
- NO PRELIMINARY INVESTIGATION AND ACCUSED CALLS THE
ATTENTION OF THE COURT TO SUCH IRREGULARITY
o Court should dismiss the information
o Remand the case to the prosecutor so that the investigation
may be conducted
ABSENCE OF PRELIMINARY INVESTIGATION; EFFECT ON JURISDICTION OF
THE COURT
3. Does not affect court’s jurisdiction over that case nor does it impair
the validity of the information or otherwise render it defective.
4. Denial of a motion for reinvestigation cannot likewise invalidate
the information or oust the court of its jurisdiction over the case.
ABSENCE OF PRELIMINARY INVESTIGATION; NOT A GROUND FOR MOTION
TO QUASH
5. Absence of preliminary investigation is not a ground for a motion
to quash.
6. Not a ground provided for in Sex 3 Rule 117, which enumerates the
grounds for a motion to quash a complaint or information.
INQUEST PROCEEDINGS
- Conducted when a person is lawfully arrested without a warrant
involving an offense which requires preliminary investigation
- Inquest is NOT a preliminary investigation
- INQUEST :
o summary investigation and which does not follow the
procedures set forth in Sec 3. Of Rule 112 or the ROC
o investigation conducted by a prosecutor in a criminal case
where a person has been lawfully arrested and detained
without a warrant of arrest
o informal and summary
DIATO2014NOTES
- PURPOSE: its purpose is to determine whether or not the person
detained should remain under custody and then charged in court.
- CONDUCTED BY public prosecutor who is assigned inquest duties as an
INQUEST OFFICER
o Discharge duties only at police stations/headquarters of the
PNP in order to expedite and facilitate the disposition of
inquest case
- COMMENCEMENT OF INQUEST PROCEEDINGS
o At the time the Inquest Officer receives the complaint and
referral documents from the law enforcement
o Document includes
1. Affidavit of arrest
2. Investigation report
3. Statements of the complainant and the witnesses
4. Other supporting evidence gathered
NOTE: this shall be subscribed and sworn to before the
Inquest Officer by the affiants
- Detained person should be present during the inquest proceedings
unless reason exist that would dispense his presence (hospital,
maximum security detention, age, health, etc)
- If necessary require the presence of the complaining witnesses and
subject them to an informal and summary investigation or examination
for purposes of determining the existence of probable cause.
POSSIBLE OPTIONS OF THE INQUEST PROSECUTOR
- Inquest Officer has INITIAL DUTY
o Duty to determine if the detained person has been arrested in
accordance with Sec 5 (a) and (b) of Rule 113 of the ROC
o He mat examine the arresting officers on the circumstances
surrounding the arrest or apprehension of the detained person
- NOT ARRESTED IN ACCORDANCE WITH THE ROC
o Inquest officer shall not proceed with the proceedings
1. He shall recommend the release if the detainee
2. Note down the disposition on the referral document
3. Prepare a brief memorandum indicating the reasons for
the action he took
4. Forward the same together with the record of the case to
the City of Provicial Prosecutor for appropriate action
20
CRIMINAL PROCEDURE (WILLARD RIANO)
o Recommendation is approved
 The release shall be served on the officer having
custody of said detainee so the arrested may be
release
 Officer shall serve upon the detainee a notice of
preliminary investigation if the evidence on hand
warrants the conduct of a regular prelim. Inv.
 Detainee shall be approved for further investigation
 Detainee shall be furnished copies of the charge sheet
or complaint, affidavits or sworn statements of the
complainant and his witnesses and other supporting
evidences
- ARREST WAS PROPERLY AFFECTED
o Inquest shall proceed
 Inquest officer must first as the detained person if he
desires to avail himself of a preliminary investigation
 Detainee avails himself of a prelim inv. : he shall be
made to execute a waiver of the provisions of Article
125 of the RPC with the assistance of a lawyer
 Prelim Inv. Shall be conducted by the Inquest Officer
himself or by any other Asst. Prosecutor to whom the
case may be assigned.
o FOUND PROBABLE CAUSE in the prelim inv. : prepare the
corresponding information with the recommendation that the
same be filed in court.
o NO PROBABLE CAUSE FOUND in the prelim inv.: recommend
the release of the detained person
THE INQUEST MUST PERTAIN TO THE OFFENSE FOR WHICH THE ARREST WAS
MADE
- Inquest conducted must be for the offense for which the detainee was
arrested
- Beltran vs People : the person was arrested for inciting to sedition but
an inquest was made for rebellion.
WHO MAY CONDUCT PRELIMINARY INVESTIGATION AND DETERMINE
EXISTENCE OF PROBABLE CAUSE
- Who are authorized to conduct a preliminary investigation
1. Provincial or city prosecutors and their assistants
DIATO2014NOTES
2. National and regional state prosecutors
3. Other officers as may be authorized by the law
NOTE: authority to conduct prelim inv. shall include all crimes
cognizable by the proper court in their respective territorial
jurisdiction
- COMELEC under the Omnibus Election Code and RA 9363: duly
authorized legal officer has the power concurrent with the other
prosecuting arms of the government to conduct a prelim inv. Of all
election offenses punishable under the Omnibus Election Code.
- OFFICE OF THE OMBUDSMAN has the authority to investigate and
prosecute on its own or on complaint by any person any act or
omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust or improper.
o Has primary jurisdiction over cases cognizable by the
Sandiganbayan
o Office of the ombudsman has full authority to issue subpoenas
(and subpoenas duces tecum) for compulsory attendance of
witnesses and the production of documents and information
relating under its investigation
- PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT 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.
THE PROCEDURE FOR PRELIMINARY INVESTIGATION MUST BE STRICTLY
FOLLOWED
- The case is illustrative of how preliminary investigation is crucial. It
could spell the difference between months if not years of agonizing
trial and possibly jail term.
- prelim inv. is a substantive right that is part of due process in criminal
justice.
- The case discussed:
o the manner in which the prosecution panel conducted the
preliminary investigation.
 Charged 48 people with rebellion
 The prosecutor treated the unsubscribed letters of the
officers of CIDG-PNP as complaints and accepted the
affidavits attached to the letters even though some
21
CRIMINAL PROCEDURE (WILLARD RIANO)
were notarized by a notary public without showing
that a prosecutor or qualified government official was
unavailable.
 After receiving letters, subpoenas the petitioners
requiring them to appear at the DOJ to secure copies
of the complaints and its attachment
 During investigation the
 Prosecutors filed the information with the RTC of
Makati
 During investigation, the prosecutor allowed the CIDG
to present a masked man who subscribed to an
affidavit before the prosecutor.
 Copies of the affidavit were distributed to members of
the media who covered the proceedings BUT NOT TO
THE petitioners and his counsel.
 Prosecutor then required petitioner to submit counter
affidavit within 10 days but petitioner only acquired
the affidavit and attachment 4 days after.
o DOJ panel of prosecutors denied petitioners motion and their
subsequent motion for reconsideration
INITIAL STEPS IN PRELIMINARY INVESTIGATION; FILING OF THE COMPLAINT
FOR PRELIMINARY INVESTIGATION
1. Filing with the investigating prosecutor that starts the preliminary
investigation process.
a. Actual application it is normally, initiated through an
affidavit of complaint
b. Required to state the address of the respondent and
accompanied by:
a. Affidavits of the complainant
b. Affidavits of the witnesses
c. Other supporting documents
c. NOTE: documents are required in order to establish
probable cause. Copies to be filed shall be in such number
as there are respondents + 2 for official file
d. Complaint filed for preliminary investigation is different
from complaint filed for instituting a criminal prosecution.
DIATO2014NOTES
i. Latter refers to the complaint filed in Sec 3 Rule
110 and in the Name of the People of the
Philippines
ii. Complaint in the preliminary investigation is not
just the affidavit of the complainant because his
affidavit is treated as a component of the
complaint.
2. Hierarchy with respect to the persons whom the affidavits may be
subscribed and sworn to:
a. Any prosecutor and not necessarily before the investigating
prosecutor
b. Government official authorized to administer oaths
c. In the absence or unavailability before a notary public.
3. Duty of the people before whom the affidavits were subscribed and
sworn to:
e. Conduct a personal examination of the affiants and
corollarily
f. to certify that he personally examined the affiants and that
he is satisfied that they voluntarily executed and
understood the affidavits.
DISMISSAL OF THE COMPLAINT OR ISSUANCE OF A SUBPOENA
1. from filing the complaint, investigating officer has 10 days to decide
which of the following option to take
a. dismiss the complaint : NO ground to conduct the investigation
b. issue a subpoena to the respondent : finds the need to continue
investigation
g. This shall include copy of the complaint and its supporting
affidavits and documents.
2. Respondent to whom the subpoena was issued shall have the right to
examine the evidence submitted by the complaint
h. He may not have been furnished with such and to copy
them at his expense.
i. Evidence is voluminous: complainant may be required to
specify those which he intends to present against the
respondent and shall be made available for examination
and copying at the respondent’s expense.
22
CRIMINAL PROCEDURE (WILLARD RIANO)
j. Objects as evidence need not be furnished but shall be
made available for examination, copying, or photographing
at the expense of the requesting party.
FILING OF COUNTER-AFFIDAVIT BY THE RESPODENT; NO MOTION TO DISMISS
1. Respondent receiving the subpoena and other supporting
documents
k. NOT ALLOWED to filed a motion to dismiss in lieu of a
counter-affidavit
l. Instead, within 10days from receipt of subpoena, he is
required to submit for his defense:
i. His counter – affidavit
ii. Affidavits of his witnesses
iii. Supporting documents
2. Counter- affidavit shall be subscribed and sworn before any
prosecutor or before any government official authorized to
administer oaths, in their absence before a notary public.
m. The person whom the affidavits were subscribed and
sworn must certify that he personally examined the
affiants and that he is satisfied that the voluntarily
executed and understood their affidavits.
7. COMMON PRACTICE: allow the filing of a reply to the counter
affidavit usually denominated as a reply – affidavit, the respondent
may likewise rebut the reply – affidavit through a rejoinder-
affidavit.
ACTION TO BE TAKEN IF THE RESPONDENT DOES NOT SUBMIT HIS COUNTER-
AFFIDAVIT
- Despite subpoena still does not submit counter affidavit within 1- days
granted to him the investigating officer shall resolve the complaint
based on the evidence presented by the complainant
o This rule shall also apply if the respondent cannot be
subpoenaed – become an ex parte investigation because
respondent cannot or does not participate in the proceedings.
- NOTE : RULE OF COURT liberally construed : respondent should be
allowed though a proper motion to have the proceedings reopened to
allow him to submit his counter affidavit and other documents.
SHOULD BE DONE BEFORE PROSECUTOR ISSUED A RESOLUTION IN THE
CASE
DIATO2014NOTES
o The motion should include an explanation for the failure to
timely file the counter affidavit.
CLARIFICATORY HEARING IF NECESSARY; NO RIGHT OF CROSS EXAMINATION
- A HEARING must be set by the investigation officer WITHIN:
o Within 10days from the submission of the counter – affidavit
and other documents filed by the respondent OR
o Within 10 days from expiration of the period for their
submission
- The hearing is set if there are facts and issues to be clarified either
from a party or a witness
- Parties can be present but NOT HAVE THE RIGHT to examine or cross-
examine each other or the witnesses
- If the parties have question : submit the question to the investigating
officer who shall ask the question to the party or witness concerned
- Hearing shall be terminated within 5 days.
- CLARIFICATORY HEARING is not indispensable during prelim inv. It is
within the discretion of the investigating officer whether to set the
case for further hearings to clarify some matters.
DETERMINATION BY THE INVESTIGATING OFFICER
- Within 10 days from termination of investigation, the investigating
prosecutor shall determine whether or not there is sufficient ground to
hold respondent for trial.
DISCRETION OF PROSECUTOR IN FILING OF A CRIMINAL COMPLAINT OR
INFORMATION
- Determination of probable cause is recognized as an executive function
exclusively of the prosecutor.
- Prosecutor officer cannot be compelled to file a criminal action if he is
not convinced that there is enough evidence to support its averments.
- DISCRETION by the prosecuting officer is involved in the determination
of probable cause then MANDAMUS under Rule 65 will not compel the
filing of a complaint of information
RESOLUTION OF INVESTIGATING OFFICER; CERTIFICATION OF PRELIMINARY
INVESTIGATION
- IF FOUND CAUSE TO HOLD RESPONDENT FOR TRIAL:
o Investigating officer shall prepare the resolution and
information
23
CRIMINAL PROCEDURE (WILLARD RIANO)
o Information shall contain Certification by the investigating
officer under oath in which he shall certify to the following
 He or as shown by the record has personally examined
the complaint and his witnesses
 There is reasonable ground to believe that a crime has MOTION FOR RECONSIDERATION
been committed
 That accused is probably guilty thereof
 Accused was informed of the complaint and of the
evidence submitted against him
 He was given opportunity to submit controverting
evidence.
- IF FOUND NO CAUSE:
o Dismissal of the complaint
EFFECT OF THE ABSENCE OF THE REQUIRED CERTIFICATION
- The information shall be valid
o Notwithstanding the absence in the information of a
certification as to the holding of preliminary investigation
o Certification is not an essential part of the information itself
and its absence cannot vitiate it as such.
FORWARDING OF THE RECORDS OF THE CASE FOR ACTION; NEED FOR
APPROVAL BEFORE FILING OR DISMISSAL
- WITHIN 5 days from his resolution, prosecutor shall forward the record
of the case to the:
o Provincial prosecutor or
o city prosecutor or
o chief state prosecutor or
o the Ombudsman or his deputy in cases of offenses cognizable
by the Sandiganbayan
- the resolution shall be acted on within 10 days from receipt and shall
immediately inform the parties of such action
- no complaint or information may be filed or dismissed by an
investigating officer without the prior WRITTEN AUTHORITY OF
APPROVAL of the officials stated above.
- RESOLUTION may be reversed or affirmed by the officials stated above.
RULE WHEN RECOMMENDATION FOR DISMISSAL IS DISAPPROVED
- Investigating officer recommends DISMISSAL but is disapproved
DIATO2014NOTES
o The provincial/city/chief state prosecutor or ombudsman may
by himself file the information against the respondent OR
o Direct another assistant prosecutor to do so without
conducting another prelim inv.
- Aggrieve party under current practice is NOT PRECLUDED from filing a
motion for reconsideration within 15 days from receipt of the assailed
resolution
- MOTION IS DENIED, aggrieved may appeal within 15 days from the
denial of the motion for reconsideration
APPEALS FOR THE SECRETARY OF JUSTICE; FILING A PETITION FOR REVIEW
- In cases of prelim inv. Or re-investigation
o Appeal may be brought to the secretary of justice from the
resolutions of the chief state prosecutor, regional state
prosecutors and provincial/city prosecutor
- SECRETARY OF JUSTICE has the authority to decide which of the
conflicting theories of the complainants and the respondents should be
believed.
- APPEAL shall be taken within 15 days from receipt of the assailed
resolution
o MOTION FOR RECONSIDERATION/REINVESTIGATION has bene
filed within 15 days from receipt of the assailed resolution
o APPEAL shall be taken within 15 days of receipt of the denial of
the motion for reconsideration/reinvestigation
- APPEAL IS MADE by filing a petition for review with the office of the
secretary, Department of Justice
o Must be verified and copies of the same must be furnished to
the adverse party and the prosecution office issuing the
appealed resolution
o Petition must contain matters under Sec 5 of Dept. Circular No
70
o FAILURE TO COMPLY – constitute ground for the dismissal of
the petition.
- NON EXTENDIBLE PERIOD OF 15 days – adverse party upon receipt of
the copy of the petition may file a verified comment, if NO COMMENT
was filed then the appeal shall be resolved on the basis of the petition
24
CRIMINAL PROCEDURE (WILLARD RIANO)
- NOTE: appeal does not hold or prevent the filing of corresponding
information in court UNLESS the Secretary of Justice directs otherwise.
- PARTY FILING FOR REVIEW is allowed to file a MOTION FOR THE
SUSPENSION OF THE ARRAIGNMENT (Rule 116 Sec 11 c)
o Arraignment shall be suspended if petition for review of the
resolution of the prosecutor is pending.
- APPEAL / PETITION IS WITHOUT MERRIT OR INTENDED FOR DELAY the
Secretary of Justice shall dismiss the petition outright.
- INFORMATION HAS BEEN FILED AND ACCUSSED HAS ALREADY BEEN
ARRAIGNED before the filing of the petition
o Petition shall not be given due course
o EXCEPT : even if accused has been arraigned the Secretary of
Justice shall not be barred from exercising his power of review.
- SECRETARY may reverse or affirm or modify the appealed resolution.
May also dismiss petition for review motu proprio or upon motion on
any following grounds
o Petition for review is filed beyond the period prescribed
o Prescribed procedure and requirements provided in Circular 70
not complied with
o No showing ay reversible error
o Accused was already arraigned when the appeal was taken
o Appealed resolution is interlocutory in nature EXCEPT when it
suspends the proceeding based on prejudicial question
o Offense has already prescribed
o Other legal and factual grounds that exist or warrant a
dismissal
- Secretary may reinvestigate the case if found necessary and the
reinvestigation shall be made by the investigating officer, unless for
compelling reasons, another prosecutor may be designate to conduct
the same.
- MOTION FOR RECONSIDERATION on the decision of the Secretary of
Justice may be filed within a non-extendible period of 10days from
receipt.
o Copies of such motion and proof of resolution service shall be
served upon the adverse party and the Prosecution Office
concerned
DIATO2014NOTES
o No further or second motion for reconsideration shall be
entertained.
RULES OF COURT PROVISIONS WHEN RESLUTION IS REVERSED OR MODIFIED
BY THE SECRETARY OF JUSTICE
- Action of the provincial/citychief state prosecutor is NOT THE FINAL
SAY ON THE CASE
- On Petition of the proper party the Secretary of Justice may reverse of
modify the resolution
o He shall direct the prosecutor to
1. File the corresponding information without
conducting another preliminary investigation
2. Dismiss or Move for dismissal of the complaint of
information with notice to the parties
POWER OF THE SECRETARY OF JUSTICE TO REVERSE RESOLUTIONS OF
PROSECUTORS
- Powers of the Secretary of justice over his subordinate (prosecutors)
duties and substitute the judgment with theirs:
o Alter
o Modify
o Nullify
o Set aside
- Secretary of Justice is bound by his oath of office to protect innocent
persons from groundless, false or serious prosecutions.
- the authority to decide which of the conflicting theories of the
complainants and the respondents should be believed
- DECISION OF SECRETARY OF JUSTICE is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction : COURT OF
APPEALS may take cognizance in a petition for certiorari Under RUla65
of the Revised Rules of Civil Procedure.
o Decision of CA may be appealed to the SC by way of petition
for certiorari
ASSAILING THE RESOLUTION OF THE SECRETARY OF JUSTICE; PETITION FOR
REVIEW UNDER RULE 43 NOT ALLOWED; PETITION FOR CERTIORARI UNDER
RULE 65
- DOJ is not an agency exercising a quasi- judicial function when it
reviews the finding of a public prosecutor regarding the presence of
25
CRIMINAL PROCEDURE (WILLARD RIANO)
probable cause and that its findings are not reviewable by the CA in a
petition for review under Rule 43
- Remedy is to file a petition for certiorari under Rule 65
- Determination of probable cause during the preliminary investigation
is done by the executive branch
o Court are not empowered to substitute their own judgment for
that of the executive branch
o CA may review resolution of Secretary of Justice under petition
for certiorari under Rule 54 SOLELY ON THE GROUND of abuse
of discretion amounting to excess of lack of jurisdiction
APPEAL TO THE OFFICE OF THE PRESIDENT
- RULE 43 from the resolution of the Secretary of Justice : appeal
referred to in such pronouncements evidently pertains only to a
JUDICIAL APPEAL
- ADMINISTRATIVE APPEAL is not proscribed. MEMORANDUM CIRCULAR
NO. 58 provides that appeals for petition for review of
decision/orders/resolutions of the Sec. of Justice are entertained by
the Office of the President on the following CONDITIONS:
o Offense is punishable by reclusion perpatua to death
o New and material issues are raised which were not presented
before the DOJ
o Prescription of the offense is not due to lapse within 6 months
from notice of the questioned resolution.
o Appeal or petition for review is filed within 30 days from notice
NOTE: if not fall within jurisdiction of the Office of the
President : DISMISSED
- Event of an adverse decision against the appellant: verified petition for
review may be taken to the CA within 15 days from notice of the final
order of the president of the office of the president following Rule 43
ROC procedures.
APPEALS UNDER RULE 43 AND RULE 45
- FROM OFFICE OF THE PRESIDENT : aggrieved party may file an appeal
with the CA under Rule 43 (Office of Pres -> CA)
o Resolution of the Off. Of the President is appealable to the CA
by filing a verified petition for review under Rule 43
DIATO2014NOTES
- FROM THE COURT OF APPEALS: aggrieved party by the judgment, final
order o resolution of CA appeal by certiorari to the SC under Rule 45
(CA-> SC)
RECORDS SUPPORTING THE INFORMATION OR COMPLAINT FILED IN COURT
- Complaint / information is filed REQUIRES SUPPORTING DOCUMENTS
o Affidavits
o Counter affidavits
 Of the parties and their witnesses
o Other supporting evidence and the resolution of the case
- Record of the preliminary investigation shall not form part of the
record of the case
o BUT the court in its own initiative or on motion of any party
may order the production of the record or any of the parts of
the preliminary investigation when necessary for the
resolution of the case.
ACTION OF THE JUDGE UPON THE FILING OF THE COMPLAINT OR
INFORMATION
- WITHIN 10 days from filing of the complaint :
o Judge shall personally evaluate the resolution of prosecutor
and the judge shall look into its supporting evidence
o Judge may find evidence
 Fails to establish probable cause
o Judge shall dismiss the case
 Establishes probable cause
 Issue a warrant of arrest
 Issue a commitment warrant : IF complaint/
information was already filed pursuant to
lawful warrant arrest or accused has already
been arrested pursuant to a warrant
previously issued.
 Engenders a doubt as to the existence of probable
cause
 Prosecution may submit additional evidence
within 5 days from notice
 Issue must be resolved within 5 days from
notice
26
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
 Issue must be resolved within 30 days from - Trial court should not rely solely and merely on the findings of the
filing of the complaint or information. public prosecutor or Secretary of Justice.
WHEN WARRANT OF ARREST IS NOT NECESSARY o Trial court has the option to grant or deny the motion
- WARRANT OF ARREST IS NOT REQUIRED IN THE FOLLOWING: SOME JUDICIAL PRONOUNCEMENT ON PRELIMINARY INVESTIGATION (cases
a. arrested on books)
i. Complaint of information has already been filed
pursuant to a lawful warrantless arrest.
ii. Accused is already under detention and was
lawfully arrested without a warrant and a
complaint or information
iii. MTC has issue a warrant pursuant to Sec 4 Rule
112 and detained Sec 5 Rule 112
b. Accused is charged for an offense punishable only by fine
- It is within the discretion of the judge to issue a warrant for the arrest
of an accused in a criminal case
 Judge personally evaluate the resolution of the
prosecutor and its supporting evidence
o May dismiss the case if no probable
cause
o There is probable cause then he is
MANDATED BY LAW to issue a warrant
 Power to order the arrest of the accused is
limited to instances in which there is necessity
for placing him in custody in order not to
frustrate the ends of justice.
WITHDRAWAL OF THE INFORMATION ALREADY FILED IN COURT
- Once a criminal complaint or information is filed in court, any
disposition of the case or dismissal or acquittal or conviction of the
accused rests within the jurisdiction, competence, and discretion of the
trial court
o One a criminal action is instituted by the filing of an
information with the court the latter acquires jurisdiction and
has the authority to determine whether to dismiss the case or
convict or acquit the accused.
- MOTION TO DISMISS case filed by the public prosecutor should be
addressed to the court which has the option to grant or deny.

27
CRIMINAL PROCEDURE (WILLARD RIANO)
CHAPTER 5: ARREST
ARREST; HOW ARREST MADE
- LAW ENFORCEMENT OFFICERS – entrusted with the power to conduct
investigation, make arrests, perform searches and seizures of persons and their
belongings, occasionally use lethal force in the line of duty
o Should be exercised within the boundaries of the law
o When exceed those boundaries of the law, they jeopardize the
admissibility of any evidence collected for prosecution.
- ARREST – taking of a person into custody in order that he may be bound to
answer for the commission of an offense.
o For specific and definite purpose
- TO MAKE AN ARREST – need not be actually restrained by the person
making the arrest
o Submission to the custody of the person making arrest already
constitutes an arrest
o Control over the person under custody -> restraint on his liberty to the
extent that he is not free to leave on his own volition
- SEC 5(B) of Rule 113 – probable cause must be based on the personal
knowledge by the arresting officer of facts and circumstances that the arrestee
is indeed the perpetrator of the criminal act.
REQUISITES FOR THE ISSUANCE OF A WARRANT OF ARREST
- SEC 2. Article III Bill of Rights
o Probable cause to be determined personally by the judge
o after examination under oath or affirmation of the complainant and the
witnesses he may produce and
o particularly describing the place to be searched and the
o persons or things to be seized
- ARREST WITHOUT PROBABLE CAUSE – unreasonable seizure of a person
and violates the privacy of persons
- PROBABLE CAUSE – facts that would lead a reasonably discreet and prudent
man to believe that a crime has been committed and that it was likely
committed by the person sought to be arrested.
o Determine probable cause: average man’s weighs the facts and
circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge
o Reliance on COMMON SENSE
- AAA vs Carbonell
o There is grave abuse of discretion for dismissing the case on the
ground that petitioner and her witnesses failed to comply with his
orders to take the witness stand
o NOT MANDATORILY require the judge to personally examine the
complainant and her witnesses.
DIATO2014NOTES
1. He may opt to personally evaluate the report and supporting
documents submitted by the prosecutor or
2. he may disregard the prosecutor’s report and require the
submission of supporting affidavits of witnesses
o necessity arises only when there is an utter failure of the evidence to
show the existence of probable cause – otherwise the judge may reply
on the report.
- Talingdan vs Eduarte
o it is the exclusive and personal responsibility of the issuing judge to
satisfy himself as to the existence of probable cause
o Personal Determination by the judge- does not mean that judges are
obliged to conduct the personal examination
 To require this would be to unduly laden them with the
preliminary examinations and investigations of criminal
complaints instead of concentrating on hearing and deciding
cases filed before the.
- Judge should consider
o Report of the investigating prosecutor
o Affidavit and the documentary evidence of the parties
o Counter – affidavit of the accused and his witnesses
o Transcript of stenographic notes taken during the preliminary
investigation (if any is submitted)
- DIRECTLY FILE WITH MTC Sec 8(b) Rule 112 in relation to Sec 1 (b)
o Personally evaluate the evidence OR
o Personally examine in writing and under oath the complainant and his
witnesses in the form of SEARCHING QUESTIONS and ANSWERS
PRELIMINARY INQUIRY (EXAMINATION) VERSUS PRELIMINARY
INVESTIGATION
PRELIMINARY INQUIRY PRELIMINARY INVESTIGATION
Determines probable cause for the Ascertains whether the offender should
issuance of a warrant of arrest be held for trial or be released
Judge Investigating prosecutor
PURPOSE: insulate from the very start
those falsely charged with crimes from
the tribulations, expenses ad anxiety of
a public trial
METHOD OF ARREST WITH A WARRANT;WARRANT NEED NOT BE IN
POSSESSION OF THE OFFICER
- Warrant is delivered to the proper law enforcement agency for execution
- Head of the Office (law enforcement) shall cause the warrant to be executed
within 10 days from receipt
28
CRIMINAL PROCEDURE (WILLARD RIANO)
o Within 10 days after expiration: executor shall make a report to the
judge who issue the warrant
o FAILURE TO EXECUTE: report shall include the reasons for its non-
execution
- WHEN MAKING AN ARREST WITH A WARRANT
1. Inform the person to be arrested of the cause of his arrest
2. Inform him of the fact that a warrant has been issue for his arrest
- INFO. NEED NOT BE MADE WHEN THE PERSON ARRESTED:
1. Flees
2. Forcibly resists
3. Giving the information will imperil the arrest
- NEED NOT HAVE WARRANT IN HIS POSSESION – however after the
arrest the warrant shall be shown to him as soon as practicable, if the person
arrested so requires.
- DUTY OF THE ARRESTING OFFICER : deliver the person arrested to the
nearest police station or jail without unnecessary delay.
NO UNNECESSARY VIOLENCE
- NO VIOLENCE OR UNNECCESARRY FORCE shall be used in making an
arrest
- NOT SUBJECT TO A GREATER RESTRAINT that is necessary for his
detention
AUTHORITY TO SUMMON ASSITANCE
- Authority to effect a arrest carries with it an authority to orally summon as
many persons as he deems necessary to assist him in effecting the arrest.
- Every person summoned by an officer is required to give the assistance
requested provided he can do so without detriment to himself
WHEN A PERSON TO BE ARRESTED IS INSIDE A BUILDING
- Authorize to break into any building or enclosure in case he refused admittance
after announcing his authority and purpose
- He may break out from said place if necessary to liberate himself from the
same place
WHEN A WARRANTLESS ARREST IS LAWFUL
- GENERAL RULE: warrant is needed in order to validly effect an arrest
- EXCEPTION: Rule 113 of the Rules of Court
1. IN FLAGRANTE : in his presence the person to be arrested has
committed, is actually committing, or is attempting to commit an offense
2. HOT PURSUIT: offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or circumstances
that the person to be arrested has committed it
3. ESCAPEE: person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending OR escaped while being
transferred from one confinement to another
DIATO2014NOTES
- CITIZEN ARREST: allow arrest if in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense
- Person previously lawfully arrested escapes or is rescued may immediately be
pursued or retaken without a warrant
- BONDSMEN: may arrest accused for the purpose of surrendering him to the
court.
o Or if the accused attempts to depart from the Philippines without
permission of the court.
WHO MAY MAKE WARRANTLESS ARRET;DUTY OF OFFICER,CITIZEN’S
ARREST
- May be made by a PEACE OFFICER or a PRIVATE PERSON (citizen’s
arrest)
THE BASIS OF THE IN FLAGRANTE DELICTO;EXCEPTION;REQUISITES
- Sec 5(a) Rule 113 “suspicion” and “reliable information” not a justification for
a warrantless arrest, there should be:
1. PERFORMANCE OF OVERT ACTS that would indicate that he has
committed, is actually committing or is attempting to commit an offense.
2. This should be done in the presence or within the view of the arresting
officer
EXISTENCE OF AN OVERT ACT OF A CRIME IN THE PRESENCE OF THE
PERSON MAKING THE ARREST (Read book for cases)
THE HOT PURSUIT EXCEPTION
- Requisites:
1. An offense has been committed
2. The person making the arrest has personal knowledge of facts indicating
that the person to be arrested has committed it
o EXCEPTION: warrantless arrest made one year after the offense has
been committed s an illegal arrest
- PERSONAL KNOWLEDGE: must be based on probable cause
o actual belief or reasonable grounds of suspicion
o supported by circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested
- REASONABLE SUSPICIOSN : must be founded on probable cause coupled
with GOOD FAITH in the part of the peace officers making the arrest
METHOD OF ARREST WITHOUT A WARRANT
1. ARREST BY AN OFFICER
a. Officer shall inform the person to be arrested his
i. authority and
ii. cause of his arrest
b. information need not be given if
i. person to be arrested is engaged in the commission of an
offense
29
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
ii. is in the process of being pursued immediately after its CUSTODIAL INVESTIGATION; EXPANDED CONCEPT
commission - RA 7438 Sec 2(f)
iii. escapes or flees o Custodial investigation shall include the practice of issuing an
iv. forcibly resists before the officer has the opportunity to so invitation to a person who is investigated in connection with an
inform him offense he is suspected t have committed, without prejudice to the
v. giving of such information will imperil the arrest liability of the inviting officer for any violation of law
2. ARREST BY A PRIVATE PERSON PENALTIES UNDER RA 7438
a. Inform the person to be arrested NOT of his authority but HIS - Arresting officer doesn’t inform the accused of his right under RA 7438 : he
INTENTION to arrest him and the CAUSE of his arrest shall suffer a penalty consisting of Php 6,000.00 or imprisonment of not less
o NOTE: breaking into a building or an enclosure specifically refers to than 8yrs but not more than 10 years or both
an OFFICER ONLY - Any person obstructs, prevents or prohibits any lawyer or member of the
3. IN FLAGRANTE or HOT PURSUIT family of arrested to visit him: shall suffer imprisonment of not less than 4
o Person arrested without warrant shall be delivered to the nearest police years nor more than 6 years and a fine of Php 4,000.00
station or jail EFFECT OF AN ILLEGAL ARREST ON JURISDICTION OF THE COURT
TIME OF MAKING AN ARREST - LEGALITY OF ARREST: affects only the jurisdiction of the court over the
- Any time of the day or night person of the accused
RIGHTS OF A PERSON ARRESTED (RA 7438) - Waiver of illegal arrest : NOT MEAN waiver of the inadmissibility of evidence
- RA 7438: seized during an illegal warrantless arrest
1. Right to be assisted by counsel at ALL times EFFECT OF ADMISSION TO BAIL ON OBJECTIONS TO AN ILLEGAL
2. Right to remain silent ARREST
3. Right to be informed of the above rights - Admission to bail shall not bar the accused from challenging the validity of his
4. Right to be visited by the immediate family members, by his counsel, or by arrest or the legality of the warrant issued
any non governmental organization, national or international - RAISES THE OBJECTION: before he enters plea
- COUNSEL: independent and competent WAIVER OF THE ILLEGALITY OF THE ARREST; EFFECT OF ILLEGAL
o Allowed to confer at all times with the person arrested/detained or ARREST
under investigation - Defect is deemed waived when the person arrested submits to arraignment
o CANNOT AFFORD counsel: the investigating officer should provide without objection
him with a competent and independent counsel - Upon waiver the accused may be ESTOPPED from assailing the illegality of
- ABSENCE OF LAWYER: his arrest if he failed to move for the QUASHING OF THE INFORMATION
o no custodial investigation can be conducted against him before his arraignment
o accused can only be detained in accordance with Art 125 of the RPC - Illegal arrest of an accused is not sufficient cause for setting aside a valid
o WAIVER OF ART 125 of RPC : judgment rendered upon sufficient complaint after a trial free from error, such
 Should be in writing arrest does not negate the validity of the conviction of the accused.
 Signed by the person arrested - This principle of waiver can only be applied if the accused voluntarily enters
 Presence of his counsel his plea and participates during trial, without previously invoking his
- EXTRAJUDICIAL CONFESSION: objections.
o Writing o There must be clear and convincing proof that the accused had an
o Signed by the person detained/under investigation actual intention to relinquish his right to question the existence of
o Presence of his counsel probable cause
 ABSENCE OF COUNSEL: presence of any of the parents, PERSONS NOT SUBJECT TO ARREST
older brothers, sisters, spouse, municipal mayor, municipal 1. Sec 11 Art 5 of constitution
judge, district school supervisor or priest or minister of the
gospel as chosen by him
30
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
o Senator or Congress in all offenses punishable by not more than 6
years imprisonment be privileged from arrest while the congress is in
session
o NOTE: NOT APPLY if the offense if punishable by more than 6 years
imprisonment
2. International Law:
a. Under accepted principles of international law, sovereigns, and other
b. chiefs of states,
c. ambassadors,
d. ministers plenipotentiary
e. ministers resident
f. charge dáffaires
o are immune from the criminal jurisdiction of the country of their
assignment and therefore immune from arrest
3. RA75
o Prohibits arrest of duly accredited
i. Ambassadors
ii. Public ministers of a foreign country and their duly registered
domestics
o NOTE: subject to the principle of reciprocity.

31
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
Chapter 6 : II. SEARCH AND SEIZURE –OVERVIEW ONLY
NATURE OF SEARCH WARRANT APPLICATION FOR A SEARCH WARRANT; WHERE TO FILE
- Search warrant is - Filed within whose territorial jurisdiction a crime was committed
o Order in writing - Exception:
o Issued in the name of the People of the Philippines o Before any court within judicial region : the place of commission of
o Signed by a judge crime is known
o Directed to a peace officer o Before any court within judicial region: where warrant shall be
o Commanding him to search for personal property described therein enforced
and o Application shall be made only in the court where the criminal action
o Bring it before the court is pending, if criminal action has already been filed.
- It is not a criminal action nor does it represent concealment of a criminal
prosecution PROPERTY SUBJECT OF A SEARCH WARRANT
- It is a Special and Peculiar Remedy - Personal Property only
- Legal process likened to a writ of discovery employed by the state to procure o Personal property subject of the offense
relevant evidence of a crime o Stolen property or embezzled and other proceeds or fruits of the
- Power to issue? Exclusively vested with the trial judges in the exercise of their offense
judicial functions o Property intended to be used as a means of committing an offense
-
CONSTITUTIONAL PROVISION REQUISITE FOR THE ISSUANCE OF A SEARCH WARRANT
- Sec 2 Article 3 of the Constitution – constitutional guarantee 1. There must be probable cause in connection with one specific offense
o Admissibility and inadmissibility of evidence based on search and 2. Presence of probable cause is to be determined by the judge personally
seizure 3. Determination by the judge must be made after an examination under oath or
ARREST VS SEARCH AND SEIZURE affirmation of the complainant and the witnesses he may produce
ARREST SEARCH AND SEIZURE 4. Warrant must specifically describe the place to be searched and the things to be
Taking of a person in custody - May follow an arrest but the search seized which may be anywhere in the Philippines
must be incident to a lawful arrest
- Covers a wide spectrum of matters PROBABLE CAUSE IN SEARCH WARRANTS
on the search of both persons and - Facts and circumstances which would lead a reasonably discreet and prudent
places and the seizure of the things man to believe that an offense has been committed and that the objects sought
found therein in connection with the offense are in the place to be searched
Probable cause: Probable Cause:
- Judge must have sufficient facts - Requires facts to show that HOW THE EXAMINATION SHALL BE CONDUCTED BY THE JUDGE
in his hands that would tend to particular things connected with a 1. Examination must be personally conducted by the judge
show that a crime has been crime are found in a specific 2. Examination must be in the form of searching questions and answers
committed and that a particular location 3. Complainant and the witnesses shall be examined and those facts personally
person committed it known to them
Judge is not necessarily required to Judge must before issuing the search 4. The statements must be in writing and under oath
make a personal examination before warrant, personally examine the 5. Sworn statements of the complainant and the witnesses, together with the
issuing a warrant of arrest complainant and the witnesses he may affidavits submitted, shall be attached to the record
produce in determining probable cause
May be made on any day and at any Usually served in the day time, unless EXCEPTION TO THE SEARCH WARRANT REQUIREMENT
time of the day or night otherwise provided in the direction of 1. Warrantless search incidental to a lawful arrest
the warrant 2. Plain view doctrine
32
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
a. Prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties
b. Evidence inadvertently discovered by the police have the right to be
where they are
c. The evidence must be immediately apparent
d. Plain view justified mere seizure of evidence without further search
3. Search of moving vehicle
4. Consented warrantless search
5. Customs search
6. Stop and frisk (terry doctrine)
7. Exigent and emergency circumstances
8. Search of vessels and aircraft
9. Inspection of buildings and other premises for the enforcement of fire, sanitary
and building regulations

33
CRIMINAL PROCEDURE (WILLARD RIANO)
CHAPTER 6: I. BAIL (RULE 114)
MEANING, NATURE AND PURPOSE OF BAIL
- Security given for the release of a person in custody of the law, furnished by
him or a bondsman, to guarantee his appearance before any court as required
under certain specified conditions
- Purpose: guarantee appearance of a person before any court
- Right of the accused to temporary liberty, but likewise the right of the state to
protect the people and the peace of the community from dangerous elements
- Constitutional right : personal in nature and therefore is waivable
- Right to bail : presumption of innocence
- Money deposited : applied to the payment of fines and costs while the excess if
any shall be returned to the accused or to whoever made the deposit
o Not intended to cover the civil liability of the accused in the same
criminal case
o Civil liability depends on conviction by final judgment
- Preventive detention : cannot practice their profession nor engage in any
business or occupation, or hold office, elective appointive, while in detention.
o Presumption of innocence not a reason for the detained accused to be
allowed to do the activities above.
o Presumption of innocence does not carry with it the full enjoyment of
civil and political rights
CONSTITUTIONAL BASIS OF THE RIGHT TO BAIL
- Right to Bail (no hearing)
o Before conviction
o Crime is punishable by imprisonment below reclusion perpetua
- Bail is discretion (requires a hearing)
o Before conviction
o Crime is punishable by reclusion perpetua
o Evidence of guilt is NOT STRONG
- No Bail
o Before conviction
o Crime is punishable by reclusion perpetua
o Evidence of guilt is STRONG
- Test : whether it shows evident guilt or great presumption of guilt
o Court is ministerially bound to decide which circumstances and
factors are present which would show evident guild or presumption of
guilt.
BAIL IN THE MILITARY
- Not available in the military
- Right to speedy trial is given more emphasis in the military
- Why?
DIATO2014NOTES
o Unique structure of the military should be enough reason to exempt
military men from the constitutional coverage on the right to bail
- Equal protection clause : not acceptable since they are not similarly situated
BAIL IN EXTRADITION PROCEEDINGS
- Before there was no bail for extradition cases since it is not a criminal in nature
but sui generis, a class in itself
- They do not involve a determination of guilt or innocence
EXCEPTION TO THE “NO BAIL RULE” IN EXTRADIATION
PROCEEDINGS
- Exceptions to no bail rule: only upon clear and convincing showing
1. One granted bail, the applicant will not be a flight risk or a danger to the
community
2. Exist special, humanitarian, compelling circumstances
PURGANAN CASE RE-EXAMINED
- View the law on no bail in extradition based on the modern trend of
international law placing primary worth of the individual:
1. Growing importance of the individual person in public international law
2. Higher value now being given to human rights in the international sphere
3. Corresponding duty of the countries to observe these universal human
right in fulfilling their treaty obligations
4. Duty of the court to balance the right of the individual under our
fundamental law and the law on extradition
- Country has responsibility protecting and promoting the right of every person
to liberty and due process
o Among the remedies include the right to be admitted to bail
BAIL IN DEPORTATION PROCEEDINGS
- Aliens in deportation proceedings : no inherent right to bail unless the right is
granted expressly by law
- Commission on Immigration: power and discretion to grant bail in deportation
proceedings
o Grant of bail is merely permissive and not mandatory or obligatory on
the part of the commissioner
WHO FURNISHES THE BAIL
- Bail applicant himself
- bondsman
OBLIGATION AND RIGHT OF THE BONDSMENL ARREST WITHOUT A
WARRANT
34
CRIMINAL PROCEDURE (WILLARD RIANO)
- surrender the accused to the court for execution of the final judgment
- For purpose of surrendering the bondsman may:
o Arrest him or
o 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
- May be re- arrested without necessity of a warrant if he attempts to depart from
the Philippines without permission of the court where the case is pending
- Bondsman : becomes the jailer of the accused and is subrogated to all the rights
and means which the government possess to make his control over him
effective
THE APPLICANT FOR BAIL MUST BE IN CUSTODY
- Applicable only to a person in “custody of the law”
- Fugitive : may not apply for bail unless he gives himself up first so he may be
placed under the custody of the law
o Why? To discourage and prevent the practice where the accused could
just send another in his stead to post his bail, without recognizing the
jurisdiction of the court by his personal appearance
- Custody of the law
o Virtue of a warrant
o Without a warrant but pursuant to the Rules of Court
o Voluntarily submits himself to the jurisdiction of the court as when he
surrenders to proper authorities
- What if confined in the hospital? May be deemed to be under the custody of the
law if he clearly communicates his submission to the court while confined in
the hospital.
BAIL TO GUARANTEE APPEARANCE OF WITNESSES
- Exception : bail required to secure the appearance of a material witness
o He may be ordered to post bail even if he is not under detention
o Guarantee the appearance of the material witness
- Court is satisfied, upon proof or oath that a material witness will not testify
when required. The court upon motion of either party orders the witness to post
bail.
o Refuses to post bail? He shall commit him to prison until he complies
or is legally discharged after his testimony has been taken
BAIL FOR THOSE NOT YET CHARGED
- A person deprived of his liberty by virtue of arrest or voluntary surrender may
apply for bail as soon as he is deprived of liberty, even before complaint or
information is filed against him
- Application shall be made where the person arrested is held
DIATO2014NOTES
- Court does not have authority to grant bail to an accused arrested outside of his
territorial jurisdiction
EFFECTS OF FAILURE TO APPEAR AT THE TRIAL
- Failure to appear:
o Waiver of his right to be present and the trial may proceed in
ABSENTIA
o Bondsman may arrest the accused by
 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
COURT CANNOT REQUIRE ARRAIGNMENT BEFORE THE GRANT OF
BAIL
- Bail should not be conditioned upon the prior arraignment of the accused
- Should be granted before arraignment, otherwise the accused will be precluded
from filing a motion to quash which is done before arraignment
- IF the information is quashed and the case dismissed -> no arraignment
***cases***
FORMS OF BAIL
1. Corporate surety
o Furnished by a corporation.
o Domestic or foreign corporation which is licensed as a surety and
authorized to act as such, may provide bail by bond subscribed jointly
by the accused and an officer of the corporation duly authorized by the
board of directors
2. Property bond
o Undertaking constituted as lien on the real property given as security
for the amount of the bail
o Within 10 days of approval -> cause annotation on the COT with the
registry of deeds and shall likewise made on the corresponding tax
declaration
o Within 10 days from compliance -> submit compliance to the court
o Failure to comply? Cancellation of property bond, re- arrest and
detention
o Qualifications:
 Resident owner of real estate within Philippines
 Only one surety – worth at least the amount of undertaking
 2 or more sureties – each may justify in an amount less than
that expressed in the undertaking. Aggregate of the justified
sum must be equivalent to the whole amount of the bail
35
CRIMINAL PROCEDURE (WILLARD RIANO)
3. Cash deposit
o Deposited with the nearest collector of internal revenue or provincial
city or municipal treasurer
 According to Judge Pano: practice is to deposit it in the clerk
of court of the RTC
o Money deposited shall be considered as bail and applied to the
payment of fine and costs while the excess, shall be returned to the
accused or to whoever made the deposit
4. Recognizance (sec 1 rule 114)
o Obligation of record with the condition to do some particular act, the
most usual condition in criminal cases being the appearance of the
accused for trial
o Recognizance : only allowed by law or by the rules of court
o Release on recognizance in the following cases
 Violation of ordinance light felony, or a criminal offense
punishable by imprisonment not exceeding 6 months and/or
fine of Php 2,000
 Custody for a period equal to or more than the minimum
imposable principle penalty – may be released on his own
recognizance or on reduced bail
 Applied for probation, pending finality of judgment but no
bail was filed or accused is incapable of filing one
 Youthful offender held for physical and mental examination,
trial or appeal
 Summary proceedings (failure to appear when required)
GUIDELINES IN FIXING THE AMOUNT OF BAIL
- Excessive bail shall not be required
- High enough to assure the presence of the accused when such presence is
required but no higher than is reasonably calculate to fulfill this purpose
- Factors to consider?
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
DURATION OF THE BAIL
DIATO2014NOTES
- Undertaking under the bail shall be effective upon approval and unless
cancelled
- Bail bond posted by the accused can only be used during the 15 day period to
appeal and not during the entire period of the appeal
o Continue provisional liberty on the same bail bond, consent of the
bondsman is necessary
NO RELEASE OR TRANSFER OF PERSON IN CUSTODY; EXCEPTIONS
WHEN BAIL IS NOT REQUIRED
- No release or transfer EXCEPT:
o Order of the court
o When he is admitted to bail
WHEN BAIL IS NOT ALLOWED
1. Law or the ROC provides
2. When a person has been in custody for a period equal to or more than the
possible maximum imprisonment prescribe for the offense charged, he
shall be released immediately, without prejudice to the continuation of the
trial or the proceedings on appeal. If the maximum penalty to which the
accused may be sentenced is destierro, he shall be released after thirty (30)
days of preventive imprisonment.
3. In cases filed by the MTC MTCT for an offense punishable by
imprisonment of less than 4 years, 2 months and 1 day – no necessity for
placing accused under the custody of the law
 May issue summons instead of a warrant of arrest
4. Violation of a municipal or city ordinance, a light felony and/or a criminal
offense wherein the penalty imposed is imprisonment of not more than 6
months or fine of Php 2,000.
- EXCEPTION
o In flagrante
o Confesses to the commission of the offense
o Escapee – previously escaped from legal confinement, evaded
sentence or jumped bail
o Previously violated the provisions of Section 2 of the law
o A recidivist or a habitual delinquent or has been previously convicted
for an offense to which the law or ordinance attaches an equal or
grated penalty or for 2 or more offenses to which it attaches a lighter
penalty
o Committed an offense while on parole or under conditional pardon
o Accused has been previously been pardoned by the municipal or city
mayor for violation of city or municipal ordinance for at least 2 times
WHEN BAIL IS NOT ALLOWED
36
CRIMINAL PROCEDURE (WILLARD RIANO)
1. Charged with capital offense, or an offense punishable by reclusion perpetua or
life imprisonment: Evidence of GUILT IS STRONG
2. After judgment of conviction has become final
3. After the accused has commenced to serve sentence
WHEN BAIL IS A MATTER OF RIGHT
- GENERAL RULE: persons in custody shall be admitted to bail as a matter of
right
o BEFORE conviction by the MTC, MeTC, MTCT, MCTC
o After conviction by said courts
o Before conviction by the RTC of an offense NOT punishable by
death, reclusion perpetua or life imprisonment
- Evidence of guilt? Determined by the court after a hearing to be conducted
with notice of hearing to the prosecutor or a requirement for him to submit his
recommendation
REMEDY WHEN BAIL IS DENIED
- Petition for CERTIORARI if the trial court committed grave abuse of
discretion amounting to excess of lack of jurisdiction in issuing said order.
DIATO2014NOTES
WHEN APPLICATION FOR BAIL AFTER CONVICTION BY THE RTC
SHALL BE DENIED
- Penalty imposed is death, reclusion perpetua or life imprisonment bail should
be denied since the conviction indicates strong evidence of guilt based on proof
beyond reasonable doubt
- If the penalty imposed by the trial court is imprisonment exceeding six (6)
years, the accused shall be denied bail, or his bail shall be cancelled upon a
showing by the prosecution, with notice to the accused, of the following or
other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence,
or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or
conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if
released on bail; or
(e) That there is undue risk that he may commit another crime during the
pendency of the appeal.

WHEN BAIL IS A MATTER OF DISCRETION BAIL PENDING APPEAL WHERE PENALTY IMPOSED EXCEEDS SIX
- Before conviction by the RTC of an offense NOT punishable by death, YEARS
reclusion perpetua or life imprisonment - APPELLATE COURT : 2 scenarios where penalty imposed in the appellant
- If it is punishable by death, reclusion perpetua or life imprisonment the applying for bail is imprisonment exceeding 6 years. (Circumstances under Sec
admission of bail becomes discretionary 5 Rule 114 3rd paragraph)
o A hearing must be conducted whether or not the prosecution refuses to None of the Circumstances Present of at least 1 circumstance
present evidence and the prosecutor must be notified to require him to Circumstances enumerated in the said The existence of at least one of the said
submit his recommendation paragraph not being present circumstances
Bail is a matter of sound judicial Appellate court exercises stringent
WHERE APPLICATION FOR BAIL IS TO BE FILED WHEN BAIL IS A discretion – none of the circumstances discretion, that is, to carefully ascertain
MATTER OF DISCRETION AND AFTER CONVICTION BY THE RTC is present then the appellate court has whether any of the enumerated
1. May be filed and acted upon by the court even if a notice of appeal has the discretion to grant of deny bail circumstances in fact exists
already been filed and provided that the trial court has not yet transmitted None existence of grant of bail – not Proven that one circumstance exist –
the original record to the appellate court automatic grant of bail, but would only revoke bail or deny bail
o If already filed with appellate court – application shall be filed with authorize less stringent sound
the said appellate court discretion approach
2. Decision of the RTC convicting of the accused changed the nature of the
offense from non-bailable to bailable, the application can only be filed HEARING OF APPLICATION FOR BAIL IN OFFENSES PUNISHABLE BY
with and resolved by the appellate court DEATH, RECLUSION PERPETUA, OR LIFE IMPRISONMENT; BURDEN OF
3. If the application for bail is granted, the accused may be allowed to PROOF IN BAIL APPLICATION
continue provisional liberty during the pendency of the appeal under the - Prosecution has the burden of showing that evidence of guilt is strong
same bail but with the consent of the bondsman

37
CRIMINAL PROCEDURE (WILLARD RIANO)
- Hearing is set to determine the existence of strong evidence or lack of it,
against the accused to enable the judge to make an intelligent assessment of the
evidence presented by the parties
- Summary hearing : such brief and speedy method of receiving and considering
the evidence of guilt as is practicable and consistent with the purpose of
hearing which is merely to determine the weight of the evidence for the
purposes of bail
DUTIES OF THE TRIAL JUDGE IN A PETITION FOR BAIL IN OFFENSES
PUNISHABLE BY RECLUSION PERPETUA, LIFE IMPRISONMENT OR
DEATH
1. Notify the prosecutor of the hearing of the application for bail or require him to
submit his recommendation
2. Conduct a hearing of the application for bail whether or not prosecution refuses
or presents evidence
3. Decide whether the evidence of guilt of the accused is strong based on the
summary of evidence of the prosecution
4. Guilt of the accused is not strong, discharge the accused upon the approval of
the bail bond, otherwise petition should be denied
- Summary is considered an aspect of procedural due process for both
prosecution and the defense
- Right to bail still may be denied if PROBABILITY OF ESCAPE is great
- Grant of bail does not prevent the court from making a final assessment of the
evidence after full trial on the merits
EVIDENCE IN BAIL HEARING ARE AUTOMATICALLY REPRODUCED AT
THE TRIAL
- Any witness during bail may be recalled by the court for additional
examination
- EXCEPT:
1. witness is dead,
2. outside the Philippines
3. otherwise unable to testify
CAPITAL OFFENSE
- under the law : punished by death
o already prohibited under RA 9346
- capital nature is determined by the penalty prescribed by law and not penalty to
be actually imposed
EFFECT OF RA9346 ON THE GRADUATION OF PENALTIES
- amendatory effects of RA 9346 extend only to the application of death penalty
but not to the definition or classification of crimes
DIATO2014NOTES
- it does not serve as basis for the reduction of civil indemnity and other damages
that adhere to heinous crimes
***read cases to understand***
WHERE APPLICATION OR PETITION FOR BAIL MAY BE FILED
- filed with the court where the case is pending
- Unavailability of judge? Filed with the RTC, MeTC, MTC, MCTC
- judges who approve applications for bail of accused who cases are pending in
other courts are guilty of gross ignorance of the law
- BAIL IS FILED WITH ANOTHER COURT? (due to unavailability)
o The judge who accepted the bail shall forward it together with the
order of release and other supporting papers, to the court where the
case is pending, which may, for good reasons, require a different one
to be filed.
- PERSON NOT YET IN CUSTODY?
o May apply for bail with any court in the province, city or municipality
where he is held
INCREASE OR REDUCTION OF BAIL
- Accused is already admitted to bail: bail may either be increased or reduced by
the court upon good cause
- Increased must be given within a reasonable period if the accused wants to
avoid being taken into custody
BAIL FOR ACCUSED ORIGINALLY RELEASE WITHOUT BAIL
- Even if release without bail, he may later be required to give bail in the amount
fixed by the court whenever at any subsequent stage of the proceedings a
strong showing of guilt appears in court.
FORFEITURE OF BAIL
- Fails to appear in person as required his bail shall be declared forfeited
- Bondsmen shall be given 30 days to produce the principal and to show cause
why no judgment should be rendered against them for the amount of the bail
o Bondsmen must produce the body of the principal or given the reason
for non-production
o Explain why the accused did not appear before the court
o FAILURE: a judgment shall be rendered against the bondsmen jointly
and severally for the amount of the bail
CANCELLATION OF THE BAIL; REMEDY
- Cancellation by application of bondsmen: may be cancelled upon application
by bondsmen with due notice to prosecutor
38
CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
a. Upon surrender of the accused or
b. Proof of his death
- Automatic cancellation –
a. Acquittal of the accused
b. Execution of the judgment of conviction
c. Dismissal of the case

APPLICATION FOR OR ADMISSION TO BAIL NOT A BAR TO

OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION
- Application or admission of the accused to bail shall not bar him from
challenging the validity of his arrest or legality of the warrant issued
- SHOULD BE RAISED BEFORE PLEA
o Because upon please the accused is precluded from questioning the
legality of the arrest

39
CRIMINAL PROCEDURE (WILLARD RIANO)
CHAPTER 7: RIGHTS OF THE ACCUSED
RIGHTS OF THE ACCUSED AT TRIAL
- Normally treated in the constitutional Law under the topic of the Bill of Rights
- Rights of the accused at trial (Sec 1 Rule 115)- 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.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment. The
accused may, however, waive his presence at the trial pursuant to the
stipulations set forth in his bail, unless his presence is specifically ordered
by the court for purposes of identification. The absence of the accused
without justifiable cause at the trial of which he had notice shall be
considered a waiver of his right to be present thereat. 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.
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
right without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-
examination on matters covered by direct examination. His silence shall not
in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial.
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.
(g) To have compulsory process issued to secure the attendance of
witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law. (1a)
PRESUMPTION OF INNOCENCE
- Constitutional in origin and a mere substantial reiteration of Sec 14(2) of Art 3
of the constitution
“… the accused shall be presumed innocent until contrary is proved”
- Presumption of regularity in the performance of duty should not by itself
prevail over the presumption of innocence
DIATO2014NOTES
o Presumption of Regularity - Mere presumption disputable by contrary
proof and which when challenged by evidence cannot be regarded as
binding truth
PRIMA FACIE PRESUMPTION OF GUILT
- Presumptions under Sec 3(j) of Rule 131 of the Rules of Court
- Legislature has the power to provide the proof of certain facts can constitute a
prima facie evidence of the guilt of the accused and then shift the burden of
proof to the accused provided that there is a rational connection between the
facts proved and the ultimate fact presumed
- Statutory presumption is merely prima face, the accused may rebut the
presumption
PROOF BEYOND REASONABLE DOUBT
- Presumption of innocence ends when it is overcome in a final conviction
- Quantum of evidence which overcomes presumption: PROOF BEYOND
REASONABLE DOUBT
o Moral certainty or degree of proof which produces conviction in an
unprejudiced mind
- Prosecution fails to meet burden of proof? Presumption of innocence prevails
and the accused should be necessarily be acquitted
***examples in the book***
- Convictions are currently on appeal?
o Not yet attained finality
o Until the accused’s guilt is shown, the presumption of innocence
continues until the promulgation of final conviction is made
PROSECUTION MUST REST ON ITS OWN MERITS
- Prosecution must rest on its own merits and must not rely on the weakness of
the defense
EFFECT OF FAILURE TO IDENTIFY THE PERPETRATOR
- “trial courts are mandated not to only look at the direct examination of
witnesses but to the totality of the evidence before them. In every case, the
court should review, assess and weigh the totality of the evidence presented by
the parties. It should not confine itself to oral testimony during the trial”
(People vs Olivo)
FAILURE TO COMPLY WITH POST-SEIZURE PROCEDURES SET BY LAW
- Presumption of regularity in performance of official duty relied upon by the
lower court cannot by itself overcome the presumption of innocence nor
constitute proof of guilt beyond reasonable doubt
40
CRIMINAL PROCEDURE (WILLARD RIANO)
- Under the law on Dangerous Drugs Act it is important to follow post seizure
procedure to accord proof of its authenticity and to show proof that the
transaction and sale actually took place coupled with the presentation in court
of evidence of corpus delicit
THE EQUIPOISE RULE
- Evidence in a criminal case is evenly balanced, the constitutional presumption
of innocence tilts the scale in favor of the accused
RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION
- Inform accused of the nature and cause accusation, the complaint or
information must contain
o Name and surname of the accused or any appellation or nickname
o Name and surname of the offenses party or ay appellation or
nickname
o Sufficient clarity and in an ordinary concise language, the acts or
omissions constituting the offense to enable the accused to know the
offense being charged
o State the qualifying and aggravating circumstance attending the acts
imputed to the accused
o Sufficiently allege that the crime was committed or its essential
ingredients occurred at some place within the jurisdiction of the court
o Date of the commission of the acts or omissions constituting the
offense
o Offenses against property : offended party is unknown, property must
be described with such particularity to properly identify the offense
charged
*****read cases to understand further*****: check number, to have
information before arraignment, how minor for it to be excusable.
- Where an accused is charged with a specific crime, he is fully informed not
only of such specific crime but also of lessor crimes or offenses included
therein
- Failure to file a motion to quash information cannot amount to waiver of the
constitutional right to be informed
RIGHT TO COUNSEL OF THE ACCUSED AND OF PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION; RA 7438
- Bill of Rights guarantees the right to counsel
o Defend in person and by counsel at every stage of the proceedings,
from arraignment to promulgation of judgment
- Even if judgment becomes final and executory, it may still be recalled, and the
accused afforded the opportunity to be heard by himself and counsel
DIATO2014NOTES
MEANING OF CUSTODIAL INVESTIGATION; EXTENDED MEARNING
- Custodial Investigation: where the police investigation is no longer a general
inquiry into an unsolved crime but has begun to focus on a particular suspect
taken into custody by the police who carry out process of interrogation that
lends itself to elicit incriminating statements
- Include the practice of issuing INVITATION to a person who is investigated in
connection with an offense he is suspected to have committed
RIGHTS OF PERSON UNDER CUSTODIAL INVESTIGATION; CUSTODIAL
INVESTIGATION REPORT
- Valid custodial investigation: (RA7438)
1. Report shall be reduced to writing by the investigating officer
2. Person does now know how to read or write: shall be read and adequately
explain to him by his counsel or by the assisting counsel. Done before the
report is signed
- Absence of a lawyer : NO CUSTODIAL INVETIGATION shall be conducted
o Why? To curb the uncivilized practice of extracting confession
- Failure to inform suspect of his rights during CI?
o Tainted confession obtained in violation is inadmissible in evidence
against the accused
- Participation of lawyer is only to notarize suspect’s confession?
o Not the lawyer considered In legal contemplation
o Not the legal assistance that should be accorded to the suspect
- Any lawyer EXCEPT those
o directly affected by the case,
o those conducting CI or
o those charged with the prosecution of crimes
- POLICE LINE UP: not part of CI since accused is not yet being investigated
- Barangay Chairman : not deemed law enforcement
o Uncounseled statement before the barangay chairman is admissible
- Right to counsel applies in certain pre0trial proceedings that can be deemed
“critical stages” : PI
RIGHT TO CHOOSE A CONSEL IS NOT PLENARY; RIGHT MAY BE
WAIVED
- NO denial of right if counsel de oficio is appointed during the absence of the
accused’s counsel de parte
- Choice to counsel in a criminal prosecution is not a PLENARY ONE
- If counsel of accused deliberately delays the case, then the court may appoint a
counsel de oficio
- Counsel ay be waived BUT must be
o voluntarily and intelligently made
41
CRIMINAL PROCEDURE (WILLARD RIANO)
o in writing
o in the presence of the counsel of the accused
COMPETENT AND INDEPENDENT COUNSEL
***discussed through cases- read cases****
- not a mere presence of lawyer
- means an efficient and decisive legal assistance and not a simple perfunctory
representation
RIGHT TO COUNSEL IN ADMINISTRATIVE CASES
- assistance of counsel is not indispensable in administrative cases
- may or may not be counsel
- why? Inquiries are conducted merely to determine whether there are facts that
merit disciplinary measures against erring public officers and employees.
o Purpose: maintaining the dignity of government services
EXTRAJUDICIAL CONFESSIONS; RIGHTS OF PERSON UNDER
CUSTODIAL INVESTIGATION
- Confession shall be admissible if it is shown that it was obtained within te
limits imposed by the constitution
- Constitution: Sec 12 Art 3
1. Any person under investigation shall have the right to be informed of his
right to remain silent and to have competent and independent counsel
2. No torture , violence…. Or similar forms of detention are prohibited
3. Confession or admission obtained in violation of Sec 17…. Shall be
inadmissible
- Extrajudicial Confessions – must be tested for voluntariness
- Extrajudicial Confession requirement based on jurisprudence and statutory
pronouncement
o Voluntary
o Made with assistance if a competent and independent counsel
o Confession must be express
o Must be in writing
- Under RA 7438: valid extrajudicial confessions
o Writing, signed by the person arrested, detained or under custodial
investigation
o Signed in the presence of counsel or In the latter’s absence, upon a
valid waiver
o Valid waiver : must be signed in the presence of parents, elder
brother/sister, spouse, municipal mayor, municipal judge, district
school supervisor, or priest or minister of gospel chosen by him
 Waiver of the provisions of Art 125 of the RPC:
 In writing
DIATO2014NOTES
 Signed by the person arrested, detained, under CI
 Such person must sign the waiver in the presence of
his counsel
RIGHT TO SPEEDY TRIAL; SPEEDY DISPOSITION OF CASES
- Guaranteed by Sect 14(2) Art 3 of the Constitution
- One free from vexatious, capricious and oppressive delays, its purpose being to
assure an innocent person may be free from the anxiety and expense of a court
litigation, if otherwise, of having his guilt determined within the shortest
possible time compatible with the presentation and consideration of whatsoever
legitimate defense he may interpose
- Application should be taken based on the facts and circumstances peculiar to
each case (case to case basis)
- Administration of justice is more important that a race to end the trial
- Extends to all cases: administrative and civil
WHEN RIGHT TO SPEEDY DISPOSITION OF CASES IS VIOLATED
- Violated when the proceedings are attended by vexatious, capricious and
oppressive delays
- Poor health of judges : not an excuse
o Should ask SC for an extension of time
- Designation of a new judge, a heavy workload - not an excuse to delay
o Should ask for extension
- Absence of clerk of court – not affect disposition of cases
o Recommend immediate appointment to the SC
PURPOSE OF TIME LIMITS SET BY LAW OR THE RULES; PRINCIPLE OF
SPEEDY TRIAL IS A RELATIVE TERM
- GENERAL PRINCIPLE: prescribing the time are considered absolutely
indispensable to the prevention of needless delays and the orderly and speedy
discharge of judicial business.
- Unwarranted slow down in the disposition of cases erodes the faith and
confidence in the judiciary
- Speedy trial is a relative term – involve degree of flexibility
o Essential is orderly and expeditious not mere speed
- BALANCING TEST: applying societal interest and the rights of the accused
necessarily compels the court to approach the speedy trial cases on an ad hoc
basis
REMEDY FOR VIOLATION OF THE RIGHT TO SPEEDY TRIAL
- Dimiss the case on a motion NOLLE PROSEQUE if the accused is
o not brought to trial within the prescribed time and deprived of his right
to a speedy trial or
42
CRIMINAL PROCEDURE (WILLARD RIANO)
o disposition of unreasonable or capricious delay by the prosecution
- dismissal based on a violation to speedy trial is equivalent to an acquittal to
double jeopardy even if the dismissal is with the consent of the accused
o bar further prosecution of the accused
FACTORS FOR GRANTING CONTINUANCE
- Whether to grant a continuance? (Speedy trial Act Sec 11)
(a) Whether the failure to grant such a continuance 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.
- No continuance under subparagraph (f) of Section 10 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.
GUIDELINES TO DETERMINE VIOLATION OF THE RIGHT TO SPEEDY
TRIAL AND SPEEDY DISPOSITION OF CASES; BALANCING TEST
- Whether or not it has been violated: guidelines
1. Length of delay
2. Reasons for such delay
3. Assertion or failure to assert such right by the accused
4. Prejudice causes by the delay
- The right to speedy trial can be determined only on an ad hoc basis
APPROACHES TO SPEEDY TRIAL
- Rigid Approaches on speedy trial : ways of eliminating some of the uncertainty
which courts experience protecting the right
1. FIXED TIME PERIOD – holds the view that the constitution requires a
criminal defendant to be offered a trial within a specified time period
2. DEMAN WAIVER RULE – defendant waives any consideration of his
right to speedy trial for any period prior to which he has not demanded
trial
- Our court adopted the MIDDLE GROUND: BALANCING TEST
o Conduct of the prosecution and defendant are weighed
o Approach the case on an ad hoc basis
****read cases to further understand concept***
THE PRIVILEGE AGAINT SELF-INCRIMINATION
- Privilege is expressed:
DIATO2014NOTES
1. No person shall be compelled to be a witness against himself (Sec 17 art 3
Constitution)
2. The accused shall be entitled to the following rights… to be exempt from
being compelled to be a witness against himself (Sec 1 Rule 115 ROC)
- Purpose? To prevent the state from extracting testimony from suspects that
may convict him and to avoid a person subject to such compulsion to perjure
himself for his own protection
- Court may not extract from defendant’s own lips and against his will an
admission of guilt
- Right against self incrimination is not automatically operation but must be
CLAIMED
o It may be waived, expressly or impliedly
- Witness receiving subpoena
o Obey
o Appear as required
o Take the stand
o Sworn
o Answer questions
o Questions to which may incriminate him for some offenses, that he
may refuse to answer on the strength of the constitutional guaranty
-
THE PRIVILEGE APPLIES ONLY TO NATURAL PERSONS
- Juridical person? No
o Its corporate existence implies amenability to legal powers (subpoena
duces tecum) that can direct corporation to produce books, records
and papers in its possession
o Self incrimination cannot be raises by a corporate officer having
possession of corporate documents for his personal benefit
- It is a personal right and applying only to natural individuals
THE PRIVILEGE PROTECTS A PERSON FROM TESTIMONIAL
COMPULSION OR EVIDECE OF A COMMUNICATIVE NATURE
- Protects a person only from testimonial compulsion or a compelled testimony
of a COMMUNICATIVE NATURE without however, declaring that the
privilege applies only to cases where a testimonial evidence is extracted from
the lips of the witness or from a strictly oral testimony
- Blood test evidence – admissible since it was not communicative in nature
- Wearing a particular clothing over his protest to facilitate identification by the
witness – not within the purview of self incrimination (body as evidence when
it may be material may be allowed)
- Police Line up – not self incriminating
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CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
- Voice as an identifying physical characteristic is allowed BUT NOT TO SPEK 1. Civil
HIS GUILT 2. Criminal
- Photography, fingerprinting, measurements, write or speak for identification, to 3. Administrative or judicial
appear in court, to stand, to assume a stance, to walk, or to make a particular 4. Investigatory or adjudicatory
gesture – NOT violative of the right against self incrimination - Privilege is a personal privilege: it adheres to the person, not to information
that may incriminate him
FORCE RE-ENACTMENT
- Evidence based on re- enactment are to violation of the constitution – DISCTINCTIONS BETWEEN THE CLAIM OF THE PRIVILEGE BY AN
incompetent evidence ACCUSED AND BY THE MERE WITNESS
Ordinary Witness Accused
MEANING OF COMPULSION Compelled to take the witness stand May altogether refuse to take witness
- Pressure which operations to overbear his will, disable him from making a free and claim the privilege as each stand and refuse to answer any and all
and rational choice, or impair his capacity for rational judgment would be question requiring an incriminating questions
sufficient. answer is shot at him
- Moral coercion – tending to force testimony from the unwilling lips of the
defendant WAIVER OF THE PRIVILEGE
- Right against self incrimination - may be waived
WRITING EXEMPLARS OR SAMPLES - If he testifies: he may be cross examined on matters covered by the direction
- Handwriting exemplars not violation of the right examination
- Witness is compelled to write and create by means of the act of writing - Waiver must be : unequivocal, intelligently , understandably and willingly
evidence which DOES NOT EXIST and which may identify him as falsifier – made
NOT ALLOWED
- Specimen signature – ALLOWED THE PRIVILEGE WILL NOT APPLY WHEN WITNESS IS GIVEN
o Securing the signature was to merely authenticate IMMUNITY FROM PROSECUTION
o It was validly seized since it was part of authentication - Government may grant immunity in exchange for a testimony favorable to the
prosecution
QUESTIONS WHICH THE WITNESS MAY REFUSE TO ANSWER - Forms of immunity
***read cases*** 1. Transactional immunity – total or blanket immunity completely protects
the witness from future prosecution from crimes related to his or her
PRIVILEGE EXTENDS TO LAWYERS ADVISING A WITNESS TO INVOKE testimony
THE PRIVILEGE 2. Use and derivative use – immunity prevents the prosecution only from
- Lawyer may not be penalized even though his advice causes the witness to using the witness’s own testimony or any evidence derived from the
disobey the court’s order testimony against the witnesses
- Witness is advised, the advice becomes an integral part of the protection.
IMMUNITY STATUTES; EXAMPLES
PERSONS WHO ARE MERE CUSTODIANS OF DOCUMENTS CANNOT ***cases***
CLAIM PRIVILEGE
- Taxpayers does not acquire possession if tax documents. THE RIGHT TO DEFEND HIMSELF; RIGHT TO BE HEARD
- Enforcement of summons did not require or compel the taxpayers to testify - Accused is accorded the right to defend himself either in person or by counsel
against themselves - Right to be present at the trial at every stage of the proceedings from
arraignment to the promulgation of the judgment
PROCEEDINGS IN WHICH THE PRIVILEGE MAY BE ASSERTED - Accused has the right to waive his presence – he shall be required to be in trial
- May be asserted: if his presence is ordered by the court for purposes of identification
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CRIMINAL PROCEDURE (WILLARD RIANO) DIATO2014NOTES
- An escape shall deemed to have waive his right to be present RIGHT TO COMPULSORY PROCESS
- Absent during trial after arraignment: case may proceed provided he has been - Invoked by the accused to secure the attendance of witnesses and the
notified and his failure to appear is unjustified production of witnesses and the production of witnesses in his behalf
- Accused filed a motion for leave to file a demurrer to evidence which was - Issuance of
granted and later denied, the court should give the accused opportunity to 1. Subpoena ad testificandum
present evidence 2. Subpoena duces tecum

THE RIFHT TO TESTIFY AS A WITNESS RIGHT TO APPEAL

- Right to testify but he may be cross examined on matters covered by the - Right to appeal in the manner prescribed by law
direction examination - Appeal in a criminal case, opens the entire case for review and the appellate
- Questions asked is limited to matters covered by the direct examination court may correct even unassigned errors
- Civil case – unassigned errors will not be considered by the appellate court
THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITESSES unless such error affects the jurisdiction of the court, the validity of the
AGAINST HIM judgment or the error is closely related to or dependent upon the assigned error
- Basic constitutional right properly argued in the brief or errors is simply plain or clerical
- Cross examination of a witness is essential to test his or her accuracy and - Appellate review – assessment is accorded respect if not conclusive
expose falsehoods
o Criminal, civil or administrative is a fundamental right and part of due
process
- Personal right which may be waived expressly or impliedly by conduct
amounting to renunciation of the right of cross examination
- Right of confrontation – not apply in PI
- During a Preliminary Investigation, a hearing may be set to clarify facts and
issues
o Parties are allowed to be present at the hearing, they have no right to
cross examine or examine the witnesses
o If the wish to ask question, they should submit to the investigation
officer questions which may be asked to the part or witness concerned
o Adverse party is deprived of the right to cross examine the person who
executed the affidavits, said affidavits are generally rejected for being
HEARSAY

RUGHT TO USE TESTIMONY OF DECEASED WITNESS

- May use testimony of deceased, or out of the country or unavailable or
otherwise unable to testify
o Testimony or deposition was given in a former case or proceeding
case between the same parties or representing the same interest
o Former case involve th same subject as that in the present case,
although different action
o Issue testified by the witness is the same issue
o There was an opportunity to cross examine the witness in the former
case

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