DEMURRER TO EVIDENCE

Category: Criminal Procedure

Sec. 23. Demurrer to evidence. – After the prosecution

rests its case, the court may dismiss the action on the
ground of insufficiency of evidence (1) on its own initiative
after giving the prosecution the opportunity to be heard or
(2) upon demurrer to evidence filed by the accused with or
without leave of court.

If the court denies the demurrer to evidence filed with

leave of court, the accused may adduce evidence in his
defense. When the demurrer to evidence is filed without
leave of court, the accused waives the right to present
evidence and submits the case for judgment on the basis of
the evidence for the prosecution.

The motion for leave of court to file demurrer to evidence

shall specifically state its grounds and shall be filed within
a non-extendible period of five (5) days after the
prosecution rests its case. The prosecution may oppose the
motion within a non-extendible period of five (5) days from its
receipt.

If leave of court is granted, the accused shall file the demurrer

to evidence within a non-extendible period of ten (10) days
from notice. The prosecution may oppose the demurrer to
evidence within a similar period from its receipt.

The order denying the motion for leave of court to file

demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment.

AFTER THE PROSECUTION RESTS ITS CASE, WHAT ARE

THE OPTIONS OF THE ACCUSED?

THE ACCUSED MAY DO THE FOLLOWING:

1. File a demurrer to evidence with leave or without leave of
court
2. Adduce his evidence unless he waives the same
WHAT IS A DEMURRER TO EVIDENCE?
It is a motion to dismiss the case filed by the defense after
the prosecution rests on the ground of insufficiency of the
evidence of the prosecution

It has been said that a motion to dismiss under the Rules of

Court takes place of a demurrer, which pleading raised
questions of law as to sufficiency of the pleading apparent on
the face thereof

In the same manner as a demurrer, a motion to dismiss

presents squarely before the court a question as to the
sufficiency of the facts alleged therein to constitute a cause of
action

WHAT ARE THE WAYS BY WHICH A CASE MAY BE

DISMISSED ON THE BASIS OF INSUFFICIENCY OF EVIDENCE
OF THE PROSECUTION?
1. The court may dismiss the case on its own initiative after
giving the prosecution the right to be heard
2. Upon demurrer to evidence filed by the accused with or
without leave of court

THE PROSECUTION RESTS ITS CASE. THE COURT THINKS

THAT THERE IS INSUFFICIENCY OF EVIDENCE PRESENTED.
WHAT DOES IT NEED TO DO IN CASE IT WISHES TO DISMISS THE
CASE?
The court may dismiss the case on its own initiative after
giving the prosecution the right to be heard

WHAT DOES IT MEAN WHEN THE PROSECUTION WOULD BE

GIVEN THE RIGHT TO BE HEARD BEFORE THE COURT
DISMISSES THE CASE?
The prosecution is given the chance to explain
itself of circumstances that may have lead to its failure to
adduce enough evidence to support its case

HOW DO YOU FILE A DEMURRER TO EVIDENCE?

Within 5 days after the prosecution rests, the accused
should file a motion for leave of court to file a demurrer to
evidence, stating in such motion his grounds for such
 The prosecution shall have 5 days within which to
oppose the motion

If the motion is granted, the accused shall file the

demurrer to evidence within 10 days from notice of grant of
leave of court

The prosecution may oppose the demurrer to evidence

within 10 days from its receipt of the demurrer

WHAT IS THE EFFECT OF FILING THE DEMURRER TO

EVIDENCE WITH LEAVE OF COURT?
The effect of its filing is that if the court grants the
demurrer, the case will be dismissed

If the court denies the demurrer to evidence filed with

leave of court, the accused may still adduce evidence on his
behalf
WHAT IS THE EFFECT OF FILING THE DEMURRER TO
EVIDENCE WITHOUT LEAVE OF COURT?
If the court denies the demurrer to evidence which
was filed without leave of court, the accused is deemed to
have waived his right to present evidence and submits the
case for judgment on basis of the evidence of the prosecution

This is because demurrer to evidence is not a matter of

right but is discretionary on the court

Permission of the court has to be obtained before it is

filed, otherwise the accused loses certain rights

THE ACCUSED FILED A DEMURRER OF EVIDENCE WITHOUT

LEAVE OF COURT. THE DEMURRER OF EVIDENCE IS DENIED.
IS THERE ABSOLUTE WAIVER OF PRESENTATION OF
EVIDENCE BY THE COURT?
No
 The general rule is that filing of a demurrer of
evidence without leave of court, which is subsequently
denied, is a waiver of presentation of evidence

Nonetheless, if the demurrer of evidence is filed before

the prosecution rests its case, there would be no waiver to
present evidence. As the prosecution hasn’t finished
presenting its evidence, there is still insufficiency of evidence.
WHAT IS THE EFFECT IF THE DEMURRER IS GRANTED AND
THE ACCUSED IS ACQUITTED?
The accused has the right to adduce evidence on the civil
aspect of the case unless the court declares that the act or
omission from which the civil liability may arise did not exist.

If the trial court issues an order or renders judgment

not only granting the demurrer to evidence of the accused and
acquitting him but also on the civil liability of the accused
to the private offended party, said judgment on its civil case
would be a nullity for violation of the rights of the accused to
due process.
WHAT IS THE REMEDY OF THE ACCUSED IF THE
DEMURRER TO EVIDENCE IS DENIED?
As a general rule, there can be no appeal or certiorari
on the denial of the demurrer to evidence, since it is an
interlocutory order which doesn’t pass judgment on the merits
of the case

In such instance, the accused has the right to adduce

evidence on his behalf not only on the criminal aspect but
also on the civil aspect of the case