I.

Legal Opinion for the Prosecution

There must be a determination of the marital status of the parties involved. If

proven that their marriage has been contracted during the subsistence of a previous
marriage then it is null and void. Thus, spousal immunity will not apply. Article 41 of
the Family Code reads:

Art. 41. A marriage contracted by any person during subsistence of a

previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of
death under the circumstances set forth in the provisions of Article 391 of the
Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse. (83a)

For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse.

The Family Code clearly provides that a court declaration of presumptive death
of a spouse is indispensible before the other spouse may marry again. Failure to comply
with this requirement results not only in a void second marriage, but also opens the
guilty spouse to a criminal charge of bigamy.

1|Page
 In case of testimonial evidence made under a validly contracted marriage,
Section 22 and section 24 (a) Rule 130 of the Rules of court provides that:

Section 22. Disqualification by reason of marriage. — During their

marriage, neither the husband nor the wife may testify for or against the other
without the consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime committed by one against
the other or the latter's direct descendants or ascendants. (20a)

The rule forbidding one spouse to testify for or against the other is based on
principles which are deemed important to preserve the marriage relation as one of full
confidence and affection, and that this is regarded as more important to the public
welfare than that the exigencies of the lawsuits should authorize domestic peace to be
disregarded for the sake of ferreting out facts within the knowledge.

The reasons given for the rule are:

1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is consequent danger of perjury;
3. The policy of the law is to guard the security and confidences of private life, even
at the risk of an occasional failure of justice, and to prevent domestic disunion and
unhappiness; and
4. Where there is want of domestic tranquility there is danger of punishing one
spouse through the hostile testimony of the other.

But like all other general rules, the marital disqualification rule has its own
exceptions, both in civil actions between the spouses and in criminal cases for offenses
committed by one against the other. Like the rule itself, the exceptions are backed by
sound reasons which, in the excepted cases, outweigh those in support of the general
rule. For instance, where the marital and domestic relations are so strained that there is
no more harmony to be preserved nor peace and tranquility which may be disturbed,

2|Page
the reason based upon such harmony and tranquility fails. In such a case, identity of
interests disappears and the consequent danger of perjury based on that identity is non-
existent. Likewise, in such a situation, the security and confidences of private life, which
the law aims at protecting, will be nothing but ideals, which through their absence,
merely leave a void in the unhappy home.

In Ordoo vs. Daquigan, this Court held:

We think that the correct rule, which may be adopted in this jurisdiction, is that
laid down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein
the court said:

The rule that the injury must amount to a physical wrong upon the person is
too narrow; and the rule that any offense remotely or indirectly affecting
domestic harmony comes within the exception is too broad. The better rule is
that, when an offense directly attacks, or directly and vitally impairs, the
conjugal relation, it comes within the exception to the statute that one shall
not be a witness against the other except in a criminal prosecution for a crime
committee (by) one against the other.

Obviously, the offense of arson attributed to petitioner, directly impairs the

conjugal relation between him and his wife Esperanza. His act, as embodied
in the Information for arson filed against him, eradicates all the major aspects
of marital life such as trust, confidence, respect and love by which virtues the
conjugal relationship survives and flourishes.

As correctly observed by the Court of Appeals:

The act of private respondent in setting fire to the house of his sister-in-law
Susan Ramirez, knowing fully well that his wife was there, and in fact with the

3|Page
 alleged intent of injuring the latter, is an act totally alien to the harmony and
confidences of marital relation which the disqualification primarily seeks to
protect. The criminal act complained of had the effect of directly and vitally
impairing the conjugal relation. It underscored the fact that the marital and
domestic relations between her and the accused-husband have become so
strained that there is no more harmony, peace or tranquility to be preserved.
The Supreme Court has held that in such a case, identity is non-existent. In
such a situation, the security and confidences of private life which the law
aims to protect are nothing but ideals which through their absence, merely
leave a void in the unhappy home. (People v. Castaeda, 271 SCRA 504).
Thus, there is no longer any reason to apply the Marital Disqualification Rule.

It should be stressed that as shown by the records, prior to the commission of

the offense, the relationship between petitioner and his wife was already
strained. In fact, they were separated de facto almost six months before the
incident. Indeed, the evidence and facts presented reveal that the
preservation of the marriage between petitioner and Esperanza is no longer
an interest the State aims to protect.

At this point, it bears emphasis that the State, being interested in laying the
truth before the courts so that the guilty may be punished and the innocent
exonerated, must have the right to offer the direct testimony of Esperanza,
even against the objection of the accused, because (as stated by this Court in
Francisco), it was the latter himself who gave rise to its necessity.

4|Page
 II. Motion to Reopen the Case
Republic of the Philippines
Province of Batangas
Office of the City Prosecutor
Lipa City
-0o0-

Republic of the Philippines,

Petitioner,

-vs- I.S. No. 123456

LEONARD VOLE,
Respondent.
x- - - - - - - - - - - - - - - - - - - - -x

MOTION FOR RE-OPENING OF CASE

COMES NOW, I, the undersigned and respondent in this case, hereby deposes
and states that:

That I am the respondent in the above-entitled case presently docketed in your

office as I.S. No. 123456;

That I filed a Rejoinder relative to this case, the same which was received by
your office on March 10, 2014;

That on the same date, the instant case was submitted for resolution;

That I affixed my signature on the record therewith after the said manifestation of
the honorable City Prosecutor;

5|Page
 That upon conferring with my lawyer and seeking legal advice and remedy
thereto, I am humbly seeking and praying for the re-opening of this case on the ground
that ;

That I am beseeching the consideration of this Honorable Court to see the merit
of my motion and grant my prayer and reopen this case for further investigation.

Further affiant sayeth naught.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 12th day of

March 2014 hereat Lipa City, Philippines.

LEONARD VOLE
Respondent
Passport No. 987654

SUBSCRIBED AND SWORN TO before me this 12th day of March 2014 hereat
Lipa City, Philippines.

6|Page
 III. On the Perjuring Witness

The question of what a criminal defense lawyer should do when the lawyer
knows for certain that the client is guilty of the crime has bedeviled legal ethics for as
long as that subject has existed.

The problem of what the lawyer should do when the client insists on committing
perjury in direct testimony rarely comes up in practice because 2 criminal defense
lawyers take care not to elicit a client’s confession, so they don’t know for sure the
client will be lying. Disclosure to the judge that the client will commit perjury (or
already has done so) is quite problematic. What is the judge supposed to do with
this information, assuming the client insists that the testimony is not perjured? The
judge will have to conduct some sort of mini-trial testing whether the story is false.
This mini-trial pits the lawyer against the client and destroys the relationship
between them, perhaps necessitating the lawyer’s withdrawal in mid-trial. Such a
hearing would insure disclosure of a wide range of client confidences. Whatever the
judge does, there will be a serious issue on appeal of abridgment of the defendant’s
right to testify. At the outset, it cannot be overemphasized that the prosecuting
officer is the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation
to govern at all; and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt shall not
escape or innocence suffer. He may prosecute with earnestness and vigor indeed,
he should do so. But, while he may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate means to bring about a just one.

In the words of Richard Refshauge: The adversarial system is rooted in the

notion of a contest with winners and losers, yet the prosecutor is ethically forbidden

7|Page
 from embracing that notion. The question then, is not what will make the prospect of
a conviction more certain, but what is fair and what will contribute to justice.

Thus, a criminal trial is not about personal redress for the victims, but about
determining the guilt and the just punishment of the accused.What is in truth referred
to when expanding on the concept of fair trial is that the rights of the accused are
protected, to the extent necessary to ensure fairness for him. Rights of the victim are
not ignored, but they are respected only to the extent that they are consistent with
the fairness of the trial for the accused.

In Allado V. Diokno, we also elucidated this delicate balancing of interests in the

following manner:

The sovereign power has the inherent right to protect itself and its people
from vicious acts which endanger the proper administration of justice; hence,
the State has every right to prosecute and punish violators of the law. This is
essential for its self-preservation, nay, its very existence. But this does not
confer a license for pointless assaults on its citizens. The right of the State to
prosecute is not a carte blanche for government agents to defy and disregard
the rights of its citizens under the Constitution. Confinement, regardless of
duration, is too high a price to pay for reckless and impulsive prosecution.
Hence, even if we apply in this case the multifactor balancing test which
requires the officer to weigh the manner and intensity of the interference on
the right of the people, the gravity of the crime committed and the
circumstances attending the incident, still we cannot see probable cause to
order the detention of petitioners.

The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees the
preservation of our natural rights which include personal liberty and security
against invasion by the government or any of its branches or

8|Page
 instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes
precedence over the right of the State to prosecute, and when weighed
against each other, the scales of justice tilt towards the former. Thus, relief
may be availed of to stop the purported enforcement of criminal law where it
is necessary to provide for an orderly administration of justice, to prevent the
use of the strong arm of the law in an oppressive and vindictive manner, and
to afford adequate protection to constitutional rights.

Let this then be a constant reminder to judges, prosecutors and other

government agents tasked with the enforcement of the law that in the
performance of their duties they must act with circumspection, lest their
thoughtless ways, methods and practices cause a disservice to their office
and maim their countrymen they are sworn to serve and protect. We thus
caution government agents, particularly the law enforcers, to be more prudent
in the prosecution of cases and not to be oblivious of human rights protected
by the fundamental law. While we greatly applaud their determined efforts to
weed society of felons, let not their impetuous eagerness violate constitutional
precepts which circumscribe the structure of a civilized community.

Indeed, at the core of our criminal justice system is the presumption of

innocence of the accused until proven guilty. Lip service to this ideal is not
enough, as our people are well acquainted with the painful reality that the
rights of the accused to a fair trial were violated with impunity by an
unchecked authority in our not so distant history. In response, the rights of the
accused were enshrined in no less than the 1987 Constitution, particularly
Article III thereof. They are further bolstered by the Rules of Court, related
legislation, general rules on evidence, and rules on ethical conduct.
The said rights of the accused come with the corresponding duties, nay,
guarantees on the part of the State, the prosecution in particular. The
prosecutions disregard of these standards amounts to prosecutorial
misconduct

9|Page
 IV. Ruling on Motion for New Trial

A new trial may be allowed based on:

G.R. No. 192737

"x x x.
The Court deems the grant of new trial without legal basis. Sections 1
and 6 of Rule 37 of the Rules of Court read:

SECTION 1. Grounds of and period for filing motion for new trial. – Within the
period for taking an appeal, the aggrieved party may move the trial court to
set aside the judgment or final order and grant a new trial for one or more of
the following causes materially affecting the substantial rights of said party:

xxxx xxxx xxxx xxxx

(b) Newly discovered evidence, which he could not, with reasonable

diligence, have discovered and produced at the trial and which if presented
would probably alter the result.

xxxx xxxx xxxx xxxx

SEC. 6. Effect of granting of motion for new trial. – If a new trial is granted in
accordance with the provisions of this Rule, the original judgment or final
order shall be vacated, and the action shall stand for trial de novo xxxx.

New trial is a remedy that seeks to temper the severity of a judgment or

prevent the failure of justice. The effect of an order granting a new trial is to
wipe out the previous adjudication so that the case may be tried de novo for
the purpose of rendering a judgment in accordance with law, taking into

10 | P a g e
 consideration the evidence to be presented during the second trial.
Consequently, a motion for new trial is proper only after the rendition or
promulgation of a judgment or issuance of a final order. A motion for new trial
is only available when relief is sought against a judgment and the judgment is
not yet final. Verily, in the case at bench, the filing by Spouses Guevarra of a
motion for new trial was premature and uncalled for because a decision has
yet to be rendered by the trial court in Civil Case No. 2187-00. Let it be
underscored that the December 22, 2003 Decision of Judge Español was
effectively set aside by the December 15, 2004 Omnibus Order of Judge
Mangrobang. Hence, there is technically no judgment which can be the
subject of a motion for new trial.

x x x."

11 | P a g e
 V. Legal Opinion for the Wife

The wife may allege in defense that the grounds to qualify murder are not present in
the case. Article 248 of the Revised Penal Code reads:

Art. 248. Murder. — Any person who, not falling within the provisions of
Article 246 shall kill another, shall be guilty of murder and shall be punished
by reclusion temporal in its maximum period to death, if committed with any of
the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken the defense or of means or persons to
insure or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a
vessel, derailment or assault upon a street car or locomotive, fall of an
airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the
victim, or outraging or scoffing at his person or corpse.

If the relation between the parties is not stated in the information filed by the
prosecution, the same would not fall under parricide and instead, she may contend that
the crime committed was homicide.

Art. 246. Parricide. — Any person who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants, or descendants,

12 | P a g e
 or his spouse, shall be guilty of parricide and shall be punished by the penalty
of reclusion perpetua to death.
Art. 249. Homicide. — Any person who, not falling within the provisions of
Article 246, shall kill another without the attendance of any of the
circumstances enumerated in the next preceding article, shall be deemed
guilty of homicide and be punished by reclusion temporal.

Also, the wife may allege the mitigating circumstance of passion and obfuscation
as provided under Article 13 (6) of the Revised Penal Code:

Art. 13. Mitigating circumstances. — The following are mitigating

circumstances;
6. That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.

13 | P a g e