CRIMINAL PROCEDURE

BAR 2019
By:1

1. It is a fundamental rule that jurisdiction to be acquired by courts in

criminal cases the offense should have been committed or any one of
its essential ingredients took place within the territorial jurisdiction of
the court.

2. The jurisdiction of a court over the criminal case is determined by the

allegations in the information. And once it is so shown, the court may
validly take cognizance of the case. However, if the evidence during
the trial show that the offense was committed somewhere else, the
court should dismiss the action for want of jurisdiction.

3. The Court of Appeals is vested with sufficient authority and discretion

to review matters, not assigned as errors on appeal, if it finds that
consideration thereof is necessary in arriving at a complete and just
resolution of the case or to serve the interests of justice or to avoid
dispensing piecemeal justice.

4. In case private individuals are charged as co-principals, accomplices

or accessories with public officers or employees including those
employed in government-owned or controlled corporations, they shall
be tried jointly with said public officers and employees in the proper
courts which shall exercise exclusive jurisdiction over them.

1
MARIO R.L. LUNA, Professor of Remedial Law, PUP College of Law and Manila Law College; Pre-Bar
Reviewer in Remedial Law: PUP Bar Review Center; New Era University Bar Review Center; Powerhous Law Review
Center; PHILJUST – Cagayan State University; and Villasis Law Center. MCLE Lecturer: ACLEx/Centro Escolar
University College of Law and Jurisprudence; ACCESS / Adamson University College of Law; and Integrated Bar of
the Philippines (IBP) Rizal Chapter. Author: (1) Disquisition and Jurisprudence on Remedial Law, Volume I, 2019
Edition (Civil Procedure) published by Central Books Supply, Inc.; (2) Disquisition and Jurisprudence on Remedial
Law, Volume II, 2019 Edition (Criminal Procedure and Evidence), published by Central Book Supply, Inc.

1
5. The Court of Tax Appeals, not the Court of Appeals, has the exclusive
original jurisdiction over petitions for certiorari assailing interlocutory
orders issued by Regional Trial Courts in a local tax case.

6. Where there are serious and weighty reasons present, which would
prevent the court of original jurisdiction from conducting a fair and
impartial trial, the Supreme Court has been mandated to order
change of venue so as to prevent a miscarriage of justice.

7. In cases where only the civil liability is being prosecuted by a private

prosecutor, the head of the prosecution office must issue in favor of
the private prosecutor a written authority to try the case even in the
absence of the public prosecutor. The written authority must be
submitted to the court prior to the presentation of evidence by the
private prosecutor.

8. The nature of a criminal charge is determined by the recital of the

ultimate facts and circumstances in the information and not by the
caption of the information of the law claimed to have been violated.

9. Given that the defense of lack of jurisdiction due to improper venue

may be raised at any stage of the proceeding, if the evidence
adduced during the trial would show that the crime was committed
outside its territorial jurisdiction, the trial court should dismiss the
case based on such ground.

10. Even if the information failed to allege with certainty the time
of the commission of the rapes, the defect, if any, was cured by the
evidence presented during the trial and any objection based on such
ground must be deemed waived as a result of the accused’s failure to
object before arraignment.

11. Accused’s failure to move for the quashal of the information on

the ground that more than one offense was charged is deemed a
waiver of his objection

2
12. An amendment is only in form when it merely adds
specifications to eliminate vagueness in the information and not to
introduce new and material facts, and merely states with additional
precision pwhich, therefore, adds nothing essential for conviction for
the crime charged.

13. In a case, the prosecution sought during trial to amend the

information from frustrated to consummated murder since the victim
died after the information for frustrated murder was filed. The
accused refused to be arraigned under the amended information
without the conduct of a new preliminary investigation. In sustaining
the admission of the amended information, the Supreme Court
reasoned that the additional allegation, that is, the supervening fact
of the death of the victim was merely supplied to aid the trial court in
determining the proper penalty for the crime. There is no change in
the nature of the offense charged; nor is there a change in the
prosecution’s theory that the accused committed a felonious act with
intent to kill the victim; nor does the amendment affect whatever
defense the accused originally may have.

14. The allegation of conspiracy among all the private respondents-

accused, which was not previously included in the original
information, is a substantial amendment saddling the respondents
with the need of a new defense in order to meet a different situation
in the trial court.

15. The reservation of the right to institute separately the civil

action shall be made before the prosecution starts presenting its
evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.

16. The criminal action and the corresponding civil action for the
recovery of civil liability for taxes and penalties shall at all times be
simultaneously instituted with, and jointly determined in the same

3
 proceeding by the Court of Tax Appeals, the filing of the criminal
action being deemed to necessarily carry with it the filing of the civil
action, and no right to reserve the filing of such civil action separately
from the criminal action will be recognized.

17. Where the civil action has been filed separately and trial thereof
has not yet commenced, it may be consolidated with the criminal
action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed.

18. An acquittal based on reasonable doubt of the guilt of the

accused does not exempt the accused from civil liability ex delicto
which may be proved by preponderance of evidence.

19. The extinction of the penal action does not necessarily carry
with it the extinction of the civil action, whether the latter is instituted
with or separately from the criminal action. The offended party may
still claim civil liability ex delicto if there is a finding in the final
judgment in the criminal action that the act or omission from which
the liability may arise exists.

20. The determination of whether the proceedings ought to be

suspended because of a prejudicial question rested on whether the
facts and issues raised in the pleadings in the specific performance
case were so related with the issues raised in the criminal complaint.

21. The absence of a preliminary investigation does not affect the

court’s jurisdiction over the case nor impair the validity of the
information or otherwise render it defective. The remedy of the
accused in such case is to call the attention of the court to the lack of
preliminary investigation and demand, as a matter of right, that one
be conducted. The court, instead of dismissing the information,
should merely suspend the trial, and order the prosecutor to conduct
a preliminary investigation.

4
22. The power to investigate or conduct preliminary investigation
on charged against any public officers or employees may be
exercised by an investigator or by any provincial or city prosecutor or
their assistants, either in their regular capacities or as deputized
Ombudsman investigator.

23. The conduct of preliminary investigation is subject to the

requirements of both substantive and procedural due process.
Preliminary investigation is considered as a judicial proceeding
wherein the prosecutor or investigating officer, by the nature of his
functions, acts as a quasi-judicial officer. Even at the stage of petition
for review before the Secretary of Justice, the requirements of
substantive and procedural due process do not abate.

24. The right to have preliminary investigation conducted before

being bound over to trial for a criminal offense and be formally at risk
of incarceration or some other penalty is not a mere formal or
technical right. It is a substantive right since the accused in a criminal
trial is inevitably exposed to prolonged anxiety, aggravation,
humiliation, not to speak of expense, and the right to an opportunity
to avoid a painful process is a valuable right. It is meant to secure
the innocent against hasty, malicious and oppressive prosecution and
to protect him from an open and public accusation of a crime, from
the trouble, expenses and anxiety of a public trial. It also intended to
protect the state from having to conduct useless and expensive trials.

25. The inordinate delay in terminating the preliminary

investigation and filing the information is violative of the
constitutionally guaranteed right of the accused to due process of law
and to a speedy disposition of cases against him.

26. Preliminary investigation unlike trial, is summary in nature, the

purpose of which is merely to determine whether a crime has been
committed and whether there is probable cause to believe that the

5
 accused is guilty thereof. It is not intended to find guilt beyond
reasonable doubt.

27. A preliminary investigation can be conducted ex-parte if the

respondent cannot be subpoenaed or does not appear after due
notice. If the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) day period
from receipt of the subpoena, the investigating officer shall resolve
the complaint based on the evidence presented by the complaint.

28. The Rules of Criminal Procedure does not require as a condition

sine qua non to the validity of the proceeding (in the preliminary
investigation) the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert the evidence
of the complainant is accorded him.

29. A preliminary investigation is “not a casual affair.” It is

conducted to protect the innocent from the embarrassment, expense
and anxiety of a public trial. While the right to have a preliminary
investigation before trial is statutory rather than constitutional, it is a
substantive right and a component of due process in the
administration of justice.

30. It the context of a preliminary investigation, the right to due

process of law entails the opportunity to be heard. It serves to accord
an opportunity for the presentation of the respondent’s side with the
regard to the accusation.

31. A finding of probable cause needs only to rest on evidence

showing that, more likely than not, a crime has been committed by
the suspects. It need not be based on clear and convincing evidence
of guilt, not on evidence establishing guilt beyond reasonable doubt,
and definitely not on evidence establishing absolutely certainty of
guilt.

6
32. In order to arrive at probable cause, the elements of the crime
charged should be present. For purposes of filing a criminal
information, probable cause has been defined as such facts as are
sufficient to engender a well-founded belief that a crime has been
committed and the respondents are probably guilty thereof.

33. The determination of a probable cause during preliminary

investigation is a function of the government prosecutor. As a rule,
the court does not interfere in the prosecutor’s exercise of discretion
in determining probable cause, unless there are compelling reasons.

34. Nonetheless, the court may exercise its certiorari power when
the government prosecutor unreasonably refuses to file an
information even if clearly warranted by the evidence.

35. Courts of law are precluded from disturbing the findings of

public prosecutors and the Department of Justice on the existence or
non-existence of probable cause for the purpose of filing criminal
informations, unless such findings are tainted with grave abuse of
discretion, amounting to lack or excess of jurisdiction.

36. Judicial review of the resolution of the Secretary of Justice is

limited to a determination of whether there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction considering
that full discretionary authority has been delegated to the executive
branch in the determination of probable cause during a preliminary
investigation.

37. The court is bound to respect the prosecutor’s professional

judgment in finding the case dismissible, absent a showing of grave
abuse of discretion.

38. Executive determination of probable cause ascertains whether a

criminal case must be filed in court. It is a function that properly
pertains to the public prosecutor who is given broad discretion to

7
 determine whether probable cause exists to charge those whom he
believes to have committed the crime as defined by law and should
be held for trial.

39. Judicial determination of probable cause ascertains whether a

warrant of arrest should be issued against the accused. It is made by
a judge who must satisfy himself that based on the evidence
presented that there is necessity in placing the accused under
custody so that the ends of justice will not be frustrated.

40. A preliminary investigation is not the occasion for the full and
exhaustive display of the prosecution’s evidence; and the presence or
absence of the elements of the crime charged is evidentiary in nature
and is a matter of defense that may be passed upon only after a full-
blown trial on the merits.

41. Owing to the initiatory nature of preliminary investigation, the

“technical rules of evidence should not be applied” in the course of
the proceedings, keeping in mind that the “determination of probable
cause does not depend on the validity or merits of a party’s
accusation or defense or on the admissibility or veracity of
testimonies presented.” Since a preliminary investigation does not
fully adjudicate the rights and obligations of parties, “probable cause
can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay.”

42. No information may be filed or dismissed without written

authority or approval of the provincial or city prosecutor or the
Ombudsman.

43. Once a criminal information is filed in court, any disposition of

the case (whether it be a dismissal, an acquittal or a conviction of the
accused) rests within the exclusive jurisdiction, competence, and
discretion of the trial court; it is the best and sole judge of what to do
with the case before it.

8
44. Once the information is filed in court and the judge proceeds
with his primordial task of evaluating the evidence on record, he may
either: (a) issue a warrant of arrest, if he finds probable cause; (b)
immediately dismiss the case, if the evidence on record clearly fails to
establish probable cause; and (c) order the prosecutor to submit
additional evidence, in case he doubts the evidence of probable
cause.

45. The determination of probable cause for the issuance of

warrants of arrest is addressed to the sound discretion of the trial
judge.

46. The trial court’s exercise of its judicial discretion should not, as
a general rule, be interfered with in the absence of grave abuse of
discretion. Indeed, certiorari will not lie to cure efforts in the trial
court’s appreciation of the evidence of the parties, the conclusion of
facts it reached on the said findings, as well as the conclusions of
law.

47. Whether or not there is probable cause for the issuance of

warrants of arrest of the accused is a question of fact based on the
allegations in the Informations, including other documents and/or
evidence appended to the Information.

48. Custody of the law is required before the court can act upon
the application for bail, but is not required for the adjudication of
other reliefs. Custody of the law is accomplished either by arrest or
voluntary surrender, while jurisdiction over the person of the accused
is acquired upon his arrest or voluntary appearance.

49. A court has the power to prohibit a person admitted to bail

from leaving the Philippines.

9
50. The condition imposed the accused to make himself available at
all times whenever the court requires his appearance operates as a
valid restriction on his right to travel.

51. The court shall not suspend the presentation of the evidence in
chief while awaiting resolution of the petition for bail or on the
motion for reconsideration.

52. A person charged of an offense governed by the Rule on

Summary Procedure need not post bail.

53. Posting bail shall not bar the accused from questioning the
validity of his arrest or from questioning the absence of a preliminary
investigation.

54. Release on recognizance is a matter of right in offenses not

punishable by death, reclusion perpetua, or life imprisonment.

55. The right of the accused to speedy trial should not be utilized
to deprive the right of the State to due process of law.

56. Arraignment is the formal mode of informing the accused of the

nature and cause of the accusation against him.

57. In multiple cases, the court, upon personal examination of the

accused, may allow a waiver of the reading of the information upon
the full understanding and express consent of accused and his
counsel, which consent shall be expressly stated in both the
minutes/certificate of arraignment and the order of arraignment.

58. An accused may not enter a conditional plea of guilty in the

sense that he admits his guilt, provided that a certain penalty shall be
imposed upon him.

10
59. The right to counsel guaranteed in Article III of the Constitution
does not extend to police lineups because they are not part of the
custodial investigation.

60. A defect in the averment as to the time of the commission of

the entire charged is not a ground for a motion to quash. Even if it
were, a motion to quash on that account will be denied since the
defect is one that can be cured by amendment; instead the court
shall order the amendment to be made by stating the time with
particularity.

61. The motion to quash is the proper way of objecting to an

information for insufficiency on its face in point of law, or for defects
which are apparent in the face of the information but constitutes a
defense of the accused, such as that the criminal action has been
extinguish, or that the accused is insane, or jeopardy.

62. The court shall consider no ground other than those stated in
the motion to quash, except lack of jurisdiction over the offense
charged. This is of course in consonance with the well-settled
doctrine that jurisdiction over the subject matter can be questioned
anytime even on appeal.

63. Accused cannot be convicted of an offense that had already

prescribed.

64. The prescription of the offense may be raised even for the first
time on appeal.

65. Under the political offense doctrine, common crimes,

perpetrated in furtherance of a political offense, are divested of their
character as common offenses and assume the political complexion
of the main crime of which they are mere ingredients, and
consequently, cannot be punished separately from the principal
offense. However, this is not say that public prosecutors are obliged

11
 to consistently charge respondents with simple rebellion instead of
common crimes.

66. The burden of demonstrating political motivation must be

discharged by the defense, since motive is a state of mind which only
the accused knows.

67. The motion to revive must be made prior to the expiration of

one-year or two-year period.

68. Acquittal is always based on the merits, that is, the accused is
acquitted because the evidence does not show the defendant’s guilt
is beyond reasonable doubt; but dismissal, does not decide the case
on the merits or that the defendant is not guilty. Dismissal terminates
the proceedings, either because the court is not a court of competent
jurisdiction, or the evidence does not show that the offense was
committed within the territorial jurisdiction of the court, or the
information is not valid or sufficient in form and substance.

69. Pre-trial agreement should be signed by accused and counsel.

The omission of the signature of an accused and his counsel renders
the stipulation of facts inadmissible in evidence.

70. Prohibited motions shall be denied outright before the

scheduled arraignment without need of comment and/or opposition
like a motion for judicial determination of probable cause.

71. A motion for postponement is prohibited, except if it is based

on acts of God, force majeure or physical inability of the witness to
appear and testify. If the motion is granted based on such
exceptions, the moving party shall be warned that the presentation
of its evidence must still be finished on the dates previously agreed
upon.

12
72. Trial once commenced shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable
period of time for good cause.

73. A witness has to be fully examined in one (1) day.

74. In all criminal cases, including those covered by the Rule on

Summary Procedure, the testimonies of witnesses shall consist of the
duly subscribed written statements given to the law enforcement or
peace officers or the affidavits or counter-affidavits submitted before
the investigating prosecutor, and if such are not available,
testimonies shall be in the form of judicial affidavits, subject to
additional direct and cross-examination questions.

75. The discharge of the accused to be utilized as a state witness

for the prosecution, should be availed of only if there is absolute
necessity for the testimony of the accused whose discharge is
required or the accused is the only one who has knowledge of the
crime and not when his testimony would simply corroborate or
otherwise strengthen the evidence in the hands of the prosecution.

76. The order discharging the accused as a state witness shall

amount to an acquittal of the discharged accused and shall be a bar
to future prosecution for the same offense, unless the accused fails
or refuses to testify against his co-accused in accordance with his
sworn statement constituting the basis for his discharge.

77. Once an accused escapes from prison confinement or jumps

bail or flees to a foreign country, he loses his standing in court and
unless the surrenders or submits to the jurisdiction of the court he is
deemed to have waived any right to seek relief form the court.

78. After the prosecution has rested its case, the court shall inquire
from the accused if he desires to move for leave of court to file

13
 demurrer to evidence or to proceed with the presentation of his
evidence.

79. If the motion for leave of court to file demurrer to evidence is

granted, and the subsequent demurrer to evidence is denied, the
accused shall likewise present and terminate his evidence (one day
apart, morning and afternoon) and shall orally offer and rest his case
on the day his last witness is presented. The court shall rule on the
oral offer of evidence of the accused and the comment or objection
of the prosecution on the same day of the offer.

80. If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense.

81. 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.

82. 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.

83. The validity of a judgment is not rendered erroneous solely

because the judge who heard the case was not the same judge who
rendered the decision.

84. A judgment of conviction may, upon motion of the accused, be

modified or set aside before it becomes final or before appeal is
perfected.

85. A judgment of acquittal may be assailed through a petition for

certiorari under Rule 65 of the Rules of Court showing that the lower
court, in acquitting the accused, committed not merely reversible
errors of judgment, but also exercised grave abuse of discretion

14
 amounting to lack or excess of jurisdiction, or a denial of due
process, thereby rendering the assailed judgment null and void.

86. The appeal period accorded to the accused should also be

available to the offended party who seeks redress of the civil aspect
of a decision. Similarly, courts may apply this ruling to the filing of a
motion for reconsideration of a judgment.

87. There is no double jeopardy (1) where the trial court

prematurely terminated the presentation of the prosecution’s
evidence and forthwith dismissed the information for insufficiency of
evidence; and (2) where the case was dismissed at a time when the
case was not ready for trial and adjudication.

88. If the accused is acquitted on reasonable doubt but the court

renders judgment on the civil aspect of the criminal case, the
prosecution cannot appeal from the judgment of acquittal as it would
place the accused in double jeopardy. However, the aggrieved party,
the offended party or the accused or both may appeal from the
judgment on the civil aspect of the case within the period therefor.

89. The trial court’s factual finding and evaluation of witnesses’

credibility and testimony should be entitled to great respect unless it
is shown that the trial court may have “overlooked, misapprehended,
or misapplied” any fact or circumstance of weight and substance.

90. The Supreme Court allow a fresh period of 15 days within

which to file the notice of appeal in the Regional Trial Court, counted
from receipt of the order dismissing a motion for a new trial or
motion for reconsideration.

91. Where the Court of Appeals imposes life imprisonment, the

judgment may be appealed to the Supreme Court by notice of appeal
with the Court of Appeals.

15
92. When a new trial is granted, the Court of Appeals may conduct
the hearing and receive evidence or refer the trial to the court of
origin.

93. Nothing in Section 2 of Rule 126 of the Rules of Criminal

Procedure does it say that the court issuing a search warrant must
also have jurisdiction over the offense. A search warrant may be
issued by any court and the resultant case may be filed in another
court that has jurisdiction over the offense committed.

94. Types of Cybercrime warrants: (a) Warrant to Disclose

Computer Data (WDCD); (b) Warrant to Intercept Computer Data
(WICD); (c) Warrant to Search, Seize and Examine Computer Data
(WSSECD); and (d) Warrant to Examine Computer Data (WECD).

95. Upon acquiring possession of a computer device or computer

system via a lawful warrantless arrest, or by any lawful method, law
enforcement authorities shall first apply for a warrant before
searching the said computer device or computer system for the
purpose of obtaining for forensic examination the computer data
therein. The data therefor shall be denominated as a Warrant to
Examine Computer Data (WECD).

96.

16