RULE 118: Pre-Trial (534-549 Riano PDF) (a) plea bargaining;
Judicial Affidavit Rule
Applies to:
1. Where the maximum imposable penalty DOES
NOT EXCEED 6 years
2. Where the ACCUSED AGREES to the use of
judicial affidavits, irrespective of the penalty
involved
3. With respect to the civil aspect of the actions,
whatever the penalties involved are.
Submission of JA by the prosecution
 Prosecution shall submit JA of its witnesses not later
than 5 days BEFORE PRE-TRIAL.
 Accused must be served a copy thereof
 Complainant or public prosecutor shall attach to the
affidavits such documentary or object evidence he
may have marking them as Exhibits A, B, C and so
on.
o NO further JA, documentary or object evidence
shall be admitted at the trial.
Submission of JA by the accused
 If the accused desires to be heard on his defense
after receipt of the JA of the prosecution, he has the
option to submit his own JA as well as those of his
witnesses to the court WITHIN TEN DAYS from
receipt of such affidavits.
 He must serve a copy to both public and private
prosecutor, including his documentary and object
evidence
 These affidavits shall serve as direct testimonies of
the accused and his witnesses when they appear
before the court to testify.
Section 1. Pre-trial; mandatory in criminal cases. —
In all criminal cases cognizable by the
Sandiganbayan, Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Court, the
court shall after arraignment and within thirty (30)
days from the date the court acquires jurisdiction
over the person of the accused, unless a shorter
period is provided for in special laws or circulars of
the Supreme Court, order a pre-trial conference to
consider the following:
(b) stipulation of facts;
(c) marking for identification of evidence of the
parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused
admits the charge but interposes a lawful defense;
and
(f) such other matters as will promote a fair and
expeditious trial of the criminal and civil aspects of
the case. (secs. 2 and 3, cir. 38-98)
 PURPOSES of pre-trial are:
1. To simplify the issues of the case
2. To shape up the testimonies and documents to
be presented at trial
3. To generally clear and organize the desk of the
parties for the trial
 Pre-trial is MANDATORY in the following courts:
1. Sandiganbayan
2. RTC
3. Inferior Courts (MTC, MTCC, MeTC, MCTC)
 Pre-trial is held for the purpose of considering the
following: (PSM-WOP)
1. Plea Bargaining
2. Stipulation of facts
3. Marking for identification of evidence of the
parties
4. Waiver of objections to admissibility of Evidence
5. Modification of the Order of trial if the accused
admits the charge but interposes a lawful
defense.
6. Other matters that will Promote a fair and
expeditious trial of the criminal and civil aspects
of the case.
What is the difference between pre-trial in criminal cases
from pre-trial in civil cases?
IN CIVIL CASES IN CRIMINAL CASES
Presence of Defendant
REQUIRED unless he is duly ACCUSED is merely
represented at the pre-trial required to sign the written
conference by his counsel agreement arrived at in the
with the requisite authority pre-trial conference, if he is
to enter into a compromise in conformity therewith.
agreement.
 Unless required by the parties and copies thereof to be attached to the
*Failing in either will cause court, his presence is not records after comparison and to consider other
the case to proceed as if the an indispensable matters that may aid in its prompt disposition.
defendant has been requirement.
declared in default. c. Informing the parties that no evidence shall be
Presence of Plaintiff/Offended Party allowed to be presented and offered during the
Presence of PLAINTIFF is Presence of PRIVATE trial other than those identified and marked
required UNLESS he is OFFENDED PARTY is not during the pre-trial EXCEPT when allowed by the
EXCUSED for valid cause or required. Instead he is court when good cause is shown.
if he is represented therein required to appear at the
by a person duly arraignment for purposes What are the consequences if the counsel for the accused
authorized in writing to of plea bargaining, or the prosecutor does not appear at the Pre-Trial
perform the acts specified determination of civil Conference?
in Section 4, Rule 18. liability and other matters
The court may impose proper sanctions or penalties, if
requiring his presence.
the counsel or prosecutor absent does not offer an
*If there is no justification,
the case may be dismissed *If he fails to appear in the ACCEPTABLE EXCUSE for his lack of cooperation. (Sec. 3,
with or without prejudice. arraignment and the Rule 118)
accused offers to plead Additional Note: Any person charged under any provision
guilty to a lesser offense
of RA 9165, regardless of the imposable penalty shall not
necessarily included in the
be allowed to avail of the provision on plea bargaining.
offense charged, he may be
allowed to do so with Section 2. Pre-trial agreement. — All agreements or
conformity of the trial
admissions made or entered during the pre-trial
prosecutor alone.
Filing of Pre-Trial Brief conference shall be reduced in writing and signed by
REQUIRED with the NOT REQUIRED but the accused and counsel, otherwise, they cannot be
particulars and the requires attendance at a used against the accused. The agreements covering
sanctions provided by pre-trial conference to the matters referred to in section 1 of this Rule shall
Section 6, Rule 18. consider the matters be approved by the court. (sec. 4, cir. 38-98)
stated in Sec. 2, Rule 118
Requisites before the pre-trial agreement can be used as
evidence:
When should a pre-trial be conducted?
1. It must be REDUCED INTO WRITING
After arraignment and within 30 days from the date the 2. It must be SIGNED by the ACCUSED and HIS COUNSEL
court acquires jurisdiction over the person of the
accused, UNLESS a shorter period is provided for in *All agreements and admissions is subject to the court’s
special laws or circulars of the SC (Rule 118, Sec 1) approval PROVIDED that the agreement on the plea of the
accused to a lesser offense MAY ONLY BE REVISED WHEN
*The court shall set the pre-trial conference within 30 IT IS CONTRARY TO LAW, PUBLIC MORALS OR PUBLIC
days from the date of arraignment and issue an order POLICY. (RA 8493; Speedy Trial Act)
containing the following:
Section 3. Non-appearance at pre-trial conference.
a. Requiring the offended party to appear for
— If the counsel for the accused or the prosecutor
purposes of plea bargaining and for other
matters requiring his presence EXCEPT in cases of
does not appear at the pre-trial conference and does
violation of RA 9165 not offer an acceptable excuse for his lack of
cooperation, the court may impose proper sanctions
b. Referring the case to the branch clerk of court, or penalties. (se. 5, cir. 38-98)
if warranted for a preliminary conference to be
set 3 days prior to the pre-trial to mark the  Sanctions or Penalty may be in the form of:
documents or exhibits to be presented by the o Reprimand
o Fine
 o Imprisonment
*Since it is similar to indirect contempt of court, it the
penalty imposable for such may be imposed.
Why is the accused not compelled to appear at the Pre-
Trial Conference?
There is a fear that to include him will violate his
constitutional right to remain silent.
Section 4. Pre-trial order. — After the pre-trial
conference, the court shall issue an order reciting
the actions taken, the facts stipulated, and evidence
marked. Such order shall bind the parties, limit the
trial to matters not disposed of, and control the
course of the action during the trial, unless modified
by the court to prevent manifest injustice. (3)
 The PURPOSE and EFFECT of the pre-trial order is to:
o BIND the parties to the issues raised therein
o LIMIT the trial to matters not disposed of
o CONTROL the course of the action during trial
*After the pre-trial, where a plea of NOT GUILTY is
entered, the accused is given at least 15 days to prepare
for trial which shall commence within 30 days from receipt
of the pre-trial order
 The court may modify the pre-trial order upon its own
initiative or at the instance of any party to PREVENT
MANIFEST INJUSTICE
RULE 119: Trial
Section 1. Time to prepare for trial. — After a plea of
not guilty is entered, the accused shall have at least
fifteen (15) days to prepare for trial. The trial shall
commence within thirty (30) days from receipt of the
pre-trial order. (sec. 6, cir. 38-98)
 “TRIAL” is the examination before a competent
tribunal, according to the laws of the land, of the facts
put in issue in a case, for the purpose of determining
such issue.
When shall trial commence?
1. 30 days from receipt of the pre-trial order
2. If the accused it to be tried again pursuant to an order
for a new trial, the trial shall commence WITHIN 30
DAYS from notice of the order granting a new trial.
(may be extended up to 180 days due to just causes)
What is the remedy if the right to prepare is denied to the
accused?
 A judgment of conviction with such attendance
circumstance may be APPEALED. Certiorari or Habeas
Corpus is NOT PROPER. (Montilla v. Arellano)
Section 2. Continuous trial until terminated;
postponements. — 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. (2a)
The court shall, after consultation with the
prosecutor and defense counsel, set the case for
continuous trial on a weekly or other short-term trial
calendar at the earliest possible time so as to ensure
speedy trial. In no case shall the entire trial period
exceed one hundred eighty (180) days from the first
day of trial, except as otherwise authorized by the
Supreme Court. (sec. 8, cir. 38-98).
The time limitations provided under this section and
the preceding section shall not apply where special
laws or circulars of the Supreme Court provide for a
shorter period of trial. (n)
Continuous Trial System
GR: Trial once commenced shall continue from day to day
as far as practicable until terminated
XPN: it may be postponed for a reasonable period of time
for good cause.
XPN to the XPN: it shall in no case exceed 180 days from
the first day of the trial
XPN to the XPN to the XPN: except as otherwise provided
by the Supreme Court or where special laws or circular of
the Supreme Court provide for a shorter period.
Instances when arraignment is made within shorter period
1. Rules on Summary Procedure (Must be arraigned and
tried IMMEDIATELY)
2. RA 4908 Where the offended party is about to depart
from the Philippines without a definite date of return
(Arraignment WITHOUT DELAY)
3. RA 7610 Involving child abuse cases (Must be tried
within 3 days from arraignment )
4. RA 9165 (Must be tried within 60 days and decision
within 15 days from submission)
5. IP Cases (Trial within 60 days and decision within 30
days from submission of the case)
6. Heinous Crime Cases (Trial within 60 days and
decision within 30 days from submission)
Requisites before a trial can be put-off on account of the
absence of a witness:
1. Witness is material and it appears to the court to be
so
2. The party who applies is not guilty of neglect
3. Witnesses can be had at the time to which the trial is
deferred and incidentally that no similar evidence
could be obtained
4. An affidavit showing the existence of the above
circumstances must be filed.
What is the remedy for the accused when a prosecutor,
without good cause secures postponement of the trial of a
defendant against his protest beyond a reasonable period
of time?
1. MANDAMUS to compel a dismissal of the information
2. If he is deprived of his liberty, by HABEAS CORPUS
The Continuing Trial System Requires that the presiding
judge:
1. ADHERE faithfully to the session hours prescribed by
laws
2. MAINTAIN full control of the proceedings
3. EFFECTIVELY ALLOCATE and USE time and court
resources to avoid court delays
4. Continuous Trial on a weekly or other short-term trial
calendar at earliest possible time.
*The court does not lose jurisdiction after the trial period
limit. He is however, liable for disciplinary sanctions.
Section 3. Exclusions. — The following periods of
delay shall be excluded in computing the time within
which trial must commence:
(a) Any period of delay resulting from other
proceedings concerning the accused, including but
not limited to the following:
(1) Delay resulting from an examination of the
physical and mental condition of the accused;
(2) Delay resulting from proceedings with respect to
other criminal charges against the accused;
(3) Delay resulting from extraordinary remedies
against interlocutory orders;
(4) Delay resulting from pre-trial proceedings;
provided, that the delay does not exceed thirty (30)
days;
(5) Delay resulting from orders of inhibition, or
proceedings relating to change of venue of cases or
transfer from other courts;
(6) Delay resulting from a finding of the existence of
a prejudicial question; and
(7) Delay reasonably attributable to any period, not
exceed thirty (30) days, during which any proceeding
which any proceeding concerning the accused is
actually under advisement.
(b) Any period of delay resulting from the absence or
unavailability of an essential witness.
For purposes of this subparagraph, an essential
witness shall be considered absent when his
whereabouts are unknown or his whereabouts
cannot be determined by due diligence. He shall be
considered unavailable whenever his whereabouts
are known but his presence for trial cannot be
obtained by due diligence.
(c) Any period of delay resulting from the mental
incompetence or physical inability of the accused to
stand trial.
(d) If the information is dismissed upon motion of the
prosecution and thereafter a charge is filed against
the accused for the same offense, any period of
delay from the date the charge was dismissed to the
date the time limitation would commence to run as
to the subsequent charge had there been no
previous charge.
(e) A reasonable period of delay when the accused is
joined for trial with a co-accused over whom the
court has not acquired jurisdiction, or, as to whom
the time for trial has not run and no motion for
separate trial has been granted.
(f) Any period of delay resulting from a continuance
granted by any court motu proprio, or on motion of
either the accused or his counsel, or the prosecution,
if the court granted the continuance on the basis of
its findings set forth in the order that the ends of
justice served by taking such action outweigh the
best interest of the public and the accused in a
speedy trial. (sec. 9, cir. 38-98)
Section 4. Factors for granting continuance. — The
following factors, among others, shall be considered
by a court in determining whether to grant a
continuance under section 3(f) of this Rule.
(a) Whether or not the failure to grant a continuance
in the proceeding would likely make a continuation
of such proceeding impossible or result in a
miscarriage of justice; and
(b) Whether or not the case taken as a whole is so
novel, unusual and complex, due to the number of
accused or the nature of the prosecution, or that it is
unreasonable to expect adequate preparation within
the periods of time established therein.
In addition, no continuance under section 3(f) of this
Rule shall be granted because of congestion of the
court's calendar or lack of diligent preparation or
failure to obtain available witnesses on the part of
the prosecutor. (sec. 10, cir. 38-98)
 Granting a motion for continuance is DISCRETIONARY
and not a right.
Section 5. Time limit following an order for new trial.
— If the accused is to be tried again pursuant to an
order for a new trial, the trial shall commence within
thirty (30) days from notice of the order, provided
that if the period becomes impractical due to
unavailability of witnesses and other factors, the
court may extend it but not to exceed one hundred
eighty (180) days from notice of said order for a new
trial. (sec. 11, cir. 38-98)
Section 6. Extended time limit. — Notwithstanding
the provisions of section 1(g), Rule 116 and the
preceding section 1, for the first twelve-calendar-
month period following its effectivity on September
15, 1998, the time limit with respect to the period
from arraignment to trial imposed by said provision
shall be one hundred eighty (180) days. For the
second twelve-month period, the limit shall be one
hundred twenty (120) days, and for the third twelve-
month period, the time limit shall be eighty (80)
days. (sec. 7, cir. 38-98)
Section 7. Public attorney's duties where accused is
imprisoned. — If the public attorney assigned to
defend a person charged with a crime knows that the
latter is preventively detained, either because he is
charged with a bailable crime but has no means to
post bail, or, is charged with a non-bailable crime, or,
is serving a term of imprisonment in any penal
institution, it shall be his duty to do the following:
(a) Shall promptly undertake to obtain the presence
of the prisoner for trial or cause a notice to be served
on the person having custody of the prisoner
requiring such person to so advise the prisoner of his
right to demand trial.
(b) Upon receipt of that notice, the custodian of the
prisoner shall promptly advise the prisoner of the
charge and of his right to demand trial. If at anytime
thereafter the prisoner informs his custodian that he
demands such trial, the latter shall cause notice to
that effect to sent promptly to the public attorney.
(c) Upon receipt of such notice, the public attorney
shall promptly seek to obtain the presence of the
prisoner for trial.
(d) When the custodian of the prisoner receives from
the public attorney a properly supported request for
the availability of the prisoner for purposes of trial,
the prisoner shall be made available accordingly.
(sec. 12, cir. 38-98)
Section 8. Sanctions. — In any case in which private
counsel for the accused, the public attorney, or the
prosecutor.
(a) Knowingly allows the case to be set for trial
without disclosing that a necessary witness would be
unavailable for trial;
(b) Files a motion solely for delay which he knows is
totally frivolous and without merit;
(c) Makes a statement for the purpose of obtaining
continuance which he knows to be false and which is
material to the granting of a continuance; or
(d) Willfully fails to proceed to trial without
justification consistent with the provisions hereof,
the court may punish such counsel, attorney, or
prosecution, as follows:
(1) By imposing on a counsel privately retained in
connection with the defense of an accused, a fine
not exceeding twenty thousand pesos (P20,000.00);
(2) By imposing on any appointed counsel de oficio,
public attorney, or prosecutor a fine not exceeding
five thousand pesos (P5,000.00); and
(3) By denying any defense counsel or prosecutor the
right to practice before the court trying the case for
a period not exceeding thirty (30) days. The
punishment provided for by this section shall be
without prejudice to any appropriate criminal action
or other sanction authorized under these rules. (sec.
13, cir. 38-98)
KINDS:
1. Criminal
2. Administrative
3. Contempt of Court
SANCTIONS:
1. PRIVATE DEFENSE COUNSEL: fine not exceeding
20,00 and criminal sanctions if any
2. COUNSEL DE OFFICIO, PUBLIC ATTORNEY or
PROSECUTOR: fine not exceeding 5000 and
criminal sanctions if any
3. DEFENSE COUNSEL or PROSECUTOR: denial of
the right to practice before the court trying the
case for a period not exceeding 30 days and
criminal sanctions if any.
Section 9. Remedy where accused is not brought to
trial within the time limit. — If the accused is not
brought to trial within the time limit required by
Section 1(g), Rule 116 and Section 1, as extended by
Section 6 of this rule, the information may be
dismissed on motion of the accused on the ground
of denial of his right of speedy trial. The accused shall
have the burden of proving the motion but the
prosecution shall have the burden of going forward
with the evidence to establish the exclusion of time
under section 3 of this rule. The dismissal shall be
subject to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to
trial shall constitute a waiver of the right to dismiss
under this section. (sec. 14, cir. 38-98)
Section 10. Law on speedy trial not a bar to provision
on speedy trial in the Constitution. — No provision of
law on speedy trial and no rule implementing the
same shall be interpreted as a bar to any charge of
denial of the right to speedy trial guaranteed by
section 14(2), article III, of the 1987 Constitution.
(sec. 15, cir. 38-98)
Section 11. Order of trial. — The trial shall proceed in
the following order:
(a) The prosecution shall present evidence to prove
the charge and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his
defense, and damages, if any, arising from the
issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that
order, present rebuttal and sur-rebuttal evidence
unless the court, in furtherance of justice, permits
them to present additional evidence bearing upon
the main issue.
(d) Upon admission of the evidence of the parties,
the case shall be deemed submitted for decision
unless the court directs them to argue orally or to
submit written memoranda.
(e) When the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the order of trial may be
modified. (3a)
GR: The order in the presentation of evdiene must be
followed. The accused may not be required to present his
evidence first before the prosecution adduces its own
proof
XPN: When a reverse procedure is adopted without the
objection of the defendant and such procedure did not
prejudice his substantial rights, the defect is not a
reversible error.
 Departure from the order of the trial is not a
reversible error as where it was agreed upon or not
objected to, but not where the change in the order of
the trial was timely objected to by the defense.
 The judgment is null and void if the order was not
followed to the extent that the prosecution is denied
the opportunity to present its evidence.
REVERSE TRIAL is when the accused admits the act or
omission charged in the complaint or information but
interposes a lawful defense.
-The trial court may allow the accused to present his
defense first and thereafter give the prosecution the
opportunity to present its rebuttal evidence.
 REFUSAL of the trial court to reverse the order of trial
upon demand of the accused who pleads self-defense
is not a reversible error.
 Trial of an accessory can proceed without waiting for
the result of the separate charge against the
principal. THEY ARE DISTINCT FROM EACH OTHER.
Section 12. Application for examination of witness
for accused before trial. — When the accused has
been held to answer for an offense, he may, upon
motion with notice to the other parties, have
witnesses conditionally examined in his behalf. The
motion shall state: (a) the name and residence of the
witness; (b) the substance of his testimony; and (c)
that the witness is sick or infirm as to afford
reasonable ground for believing that he will not be
able to attend the trial, or resides more than one
hundred (100) kilometers from the place of trial and
has no means to attend the same, or that other
similar circumstances exist that would make him
unavailable or prevent him from attending the trial.
The motion shall be supported by an affidavit of the
accused and such other evidence as the court may
require. (4a)
The motion shall state:
(a) The name and residence of the witness
(b) The substance of his testimony; and
(c) that the witness is sick or infirm as to afford reasonable
ground for believing that he will not be able to attend the
trial, or resides more than one hundred (100) kilometers
from the place of trial and has no means to attend the
same, or that other similar circumstances exist that would
make him unavailable or prevent him from attending the
trial
Section 13. Examination of defense witness; how
made. — If the court is satisfied that the examination
of a witness for the accused is necessary, an order
will be made directing that the witness be examined
at a specified date, time and place and that a copy of
the order be served on the prosecutor at least three
(3) days before the scheduled examination. The
examination shall be taken before a judge, or, if not
practicable, a member of the Bar in good standing so
designated by the judge in the order, or if the order
be made by a court of superior jurisdiction, before an
inferior court to be designated therein. The
examination shall proceed notwithstanding the
absence of the prosecutor provided he was duly
notified of the hearing. A written record of the
testimony shall be taken. (5a)
How is examination of defense witness made?
If the court is satisfied that the examination of a witness
for the accused is necessary, an order will be made
directing that the witness be examined at a specified
date, time and place and that a copy of the order be
served on the prosecutor at least three (3) days before
the scheduled examination.
Who makes the examination?
The examination shall be taken before a judge, or, if not
practicable, a member of the Bar in good standing so
designated by the judge in the order, or if the order be
made by a court of superior jurisdiction, before an inferior
court to be designated therein. The examination shall
proceed notwithstanding the absence of the prosecutor
provided he was duly notified of the hearing
Deposition
It is the testimony of a witness taken upon oral questions
or written interrogatories, in open court, but in pursuance
of a commission to take testimony issued by a court, or
under a general law or court rule on the subject and
reduced to writing and duly authenticated, and intended
to be used in preparation and upon the trial of a civil or
criminal prosecution.
Purpose of Taking Deposition
1. Greater assistance to the parties in ascertaining the
truth and preventing perjury
2. Provide an effective means of detecting and exposing
false, fraudulent claims and defense
3. Make available in simple, convenient and inexpensive
way, facts which otherwise could not be proved
EXCEPT with greater difficulty
4. Educate the parties in advance of trial as to the real
value of their claims and defense thereby
encouraging settlements
5. Expedite Litigation
6. Prevent Delay
7. Simplify and narrow the issues
8. Expedite and facilitate both preparation and trial
Section 14. Bail to secure appearance of material
witness. — When the court is satisfied, upon proof
or oath, that a material witness will not testify when
required, it may, upon motion of either party, order
the witness to post bail in such sum as may be
deemed proper. Upon refusal to post bail, the court
shall commit him to prison until he complies or is
legally discharged after his testimony has been
taken. (6a)
Section 15. Examination of witness for the
prosecution. — When it satisfactorily appears that a
witness for the prosecution is too sick or infirm to
appear at the trial as directed by the order of the
court, or has to leave the Philippines with no definite
date of returning, he may forthwith be conditionally
examined before the court where the case is
pending. Such examination, in the presence of the
accused, or in his absence after reasonable notice to
attend the examination has been served on him,
shall be conducted in the same manner as an
examination at the trial. Failure or refusal of the
accused to attend the examination after notice shall
be considered a waiver. The statement taken may be
admitted in behalf of or against the accused. (7a)
1. The witness for the prosecution may be conditionally
examined by the court where the case is pending if
the witness is:
a. Too sick to appear at trial
b. Has to leave the Philippines with no definite date
of return
2. Such examination should be in the presence of the
accused or in his absence after reasonable notice to
attend the examination has been served on him
3. Examination of Child Witnesses is tackled under rule
on examination of a child witness
Conditional Examination of Witnesses
DEFFENSE WITNESS PROSECUTION WITNESS
REQUIREMENT
1. Witness is sick 1. Witness is sick or
2. Witness resides 100 infirm to appear at
km from the place of the trial
trial 2. Witness has to leave
the country with no
definite date of
returning.
WHO EXAMINES
1. Judge of proper court Before the court where
2. Member of the bar the case is pending
3. Inferior court
ABSENCE
Even if prosecutor is Even if accused is absent,
absent, examination will the examination will
proceed proceed.
People v. Webb and Go v. People
1. In taking depositions of defense witnesses, Rule 23 is
applicable.
REASON: A much stronger reason exists why deposition in
criminal cases of a witness for the defense who is residing
abroad must be allowed. Involved in a criminal case is not
just the status or the property of the defendant, but the
life or limb or the liberty of the accused. If, then, a
deposition is allowed for a witness in a civil case, then it is
with more reason that it be allowed in a criminal case; its
denial would amount to a deprivation of due process and
to the accused's right to compulsory process to secure
the attendance of witnesses in his favor, which are
guaranteed by the Bill of Rights
2. In taking deposition of prosecution witnesses, Rule
119, Section 15 must be strictly complied with.
REASON: where it is the prosecution that seeks to depose
the complaining witness against the accused because in
such a case, the stringent procedure under Section 15,
Rule 119 cannot be ignored without violation the
constitutional right of the accused to due process.
Section 16. Trial of several accused. — When two or
more accused are jointly charged with any offense,
they shall be tried jointly unless the court, in its
discretion and upon motion of the prosecutor or any
accused, orders separate trial for one or more
accused. (8a)
GR: When two or more persons are jointly charged with
an offense, they shall be tried jointly.
*This rule is designed to preclude a wasteful expenditure
of judicial resources and to promote and orderly and
expeditious disposition of criminal prosecutions
XPN: the court in its discretion or upon motion of the
fiscal or of any of the defendants may order a separate
trial for one or more accused.
*In the interest of justice, a separate trial may be granted
even after the prosecution has finished presenting its
evidence in chief.
**If a separate trial is granted, the testimony of one
accused imputing the crime to his co-accused is not
admissible against the latter who had no opportunity to
cross examine the witness
***In joint trial, it would be admissible if the latter had
the opportunity for cross examination
Section 17. Discharge of accused to be state witness.
— When two or more persons are jointly charged
with the commission of any offense, upon motion of
the prosecution before resting its case, the court
may direct one or more of the accused to be
discharged with their consent so that they may be
witnesses for the state when, after requiring the
prosecution to present evidence and the sworn
statement of each proposed state witness at a
hearing in support of the discharge, the court is
satisfied that:
(a) There is absolute necessity for the testimony of
the accused whose discharge is requested;
(b) The is no other direct evidence available for the
proper prosecution of the offense committed,
except the testimony of said accused;
(c) The testimony of said accused can be
substantially corroborated in its material points;
(d) Said accused does not appear to be the most
guilty; and
(e) Said accused has not at any time been convicted
of any offense involving moral turpitude.
Evidence adduced in support of the discharge shall
automatically form part of the trial. If the court
denies the motion for discharge of the accused as
state witness, his sworn statement shall be
inadmissible in evidence. (9a)
 Motion to discharge should be made by the
prosecution before resting its case
 The discharge of the accused to be a state witness lies
in the discretion of the court and the prosecution can
only propose such charge and the court may refuse
such discharge if the objective of the prosecution will
not be served by that discharge.
REQUISITES FOR DISCHARGE:
a. Two or more persons are jointly charged with a
commission of an offense
b. The prosecution files a motion discharge one or more
but not all of the accused to be discharged with their
consent
c. Prosecution shall present evidence and sworn
statement of the proposed accused to be discharged
as state witness
d. The court shall ascertain whether the condition in this
section is present.
CONDITIONS TO BE MET BEFORE AN ACCUSED CAN BE
DISCHARGED AS STATE WITNESS:
1. ABSOLUTE NECESSITY for the testimony of the
accused whose discharge is requested
*ABSOLUTE NECESSITY means that he alone has
knowledge of the crime and not when his testimony
would simply corroborate or otherwise strengthen the
evidence in the hands of the prosecutor.
2. No other direct evidence available for the prosecution
3. Testimony can be substantially corroborated in its
material points
4. Accused does not appear to be the guiltiest
5. The accused need not be the least guilty
6. Accused has never been convicted of an offense
involving moral turpitude.
MORAL TURPITUDE: everything which is done contrary to
justice, modesty or good morals; an act of baseness,
vileness, or depravity in the private and social duties
which a man owes his fellowmen or to society in general.
2. If the court denies the motion to discharge the
accused as a state witness, his sworn statement shall
be inadmissible in evidence
3. Discharge of accused operates as an acquittal and bar
to further prosecution for the same offense.
Other modes to be a state witness:

7. The application for discharge is filed by the prosecution 1. Witness Protection Program (RA 6981)
before the defense has offered its evidence. 2. Power of the ombudsman to grant immunity under
section 17, RA 6770
*Absence of any of the requisites is a ground for objection
3. Immunity under PD 749
but it must be raised before the discharge is ordered.
4. Grant of Immunity under EO 14-A
RA 6981 (Witness Rule 119, Section 17
Section 18. Discharge of accused operates as
Protection, Security and
Benefit Act) acquittal. — The order indicated in the preceding
Applicability section shall amount to an acquittal of the
The offense in which the Applies to all felonies discharged accused and shall be a bar to future
testimony is to be used is prosecution for the same offense, unless the
limited only to grave accused fails or refuses to testify against his co-
felonies
accused in accordance with his sworn statement
Granting of Immunity
Granted by DOJ Granted by the court constituting the basis for the discharge. (10a)
Entitlement to Certain Rights GR: the discharge of the accused shall amount to an
The witness is The witness so discharged acquittal and shall be a bar to future prosecution for the
automatically entitled to must still apply for the same offense.
certain rights and benefits enjoyment of said rights
and benefits in the DOJ Where an accused has been discharged to be utilized as
Prior Charge state witness and he thus testified, the fact that the
The witness need not be He is charged in court as discharge was erroneous because the conditions for
charged elsewhere one of the accused as discharge were not complied with did not nullify his
stated in the information privilege of being excluded from the information or from
Immunity being charged anew for the same offense or for an
No information may be The charges against him attempt or frustration thereof or for crimes necessarily
filed against the witness shall be dropped and the
included in or necessarily including those offense. In
same operates as an
other words, the incriminating testimony he gave cannot
acquittal.
be used against him but can be used against his other co-
accused.
*Any question against the order of the court to discharge
an accused to be used as state witness must be raised in XPNS:
trial court. It cannot be considered on appeal. 1. If the accused fails to testify against his co-accused in
**If there is a showing of grave abuse of discretion, said accordance with his sworn statement constituting the
order may be challenged by petition for certiorari and basis of the discharge
prohibition. 2. Failure to testify refers exclusively to defendant’s will
or fault
Effects of Discharge: 3. Where an accused who turns into a state witness on
a promise of immunity but later retracts and fails to
1. Evidence adduced in support of the discharge shall
keep his part of the agreement, his confession of his
automatically form part of the trial
participation in the commission of the crime is
admissible as evidence against him.
*Erroneous or improper discharge of state witness does
not affect the competency and quality of the testimony of
the discharged defendant.
Section 19. When mistake has been made in charging
the proper offense. — When it becomes manifest at
any time before judgment that a mistake has been
made in charging the proper offense and the
accused cannot be convicted of the offense charged
or any other offense necessarily included therein,
the accused shall not be discharged if there appears
good cause to detain him. In such case, the court
shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing
of the proper information. (11a)
Rule 110, Section 14 Rule 119, Section 19
To Whom Directed
To the prosecutor To the judge
When Resorted To
Can be done even Always done during trial
before or during trial
Section 20. Appointment of acting prosecutor. —
When a prosecutor, his assistant or deputy is
disqualified to act due to any of the grounds stated
in section 1 of Rule 137 or for any other reasons, the
judge or the prosecutor shall communicate with the
Secretary of Justice in order that the latter may
appoint an acting prosecutor. (12a)
Section 21. Exclusion of the public. — The judge may,
motu proprio, exclude the public from the
courtroom if the evidence to be produced during the
trial is offensive to decency or public morals. He may
also, on motion of the accused, exclude the public
from the trial, except court personnel and the
counsel of the parties. (13a)
GR: The accused has the right to a public trial and under
ordinary circumstances, the court may not close the door
of the courtroom to the general public.
XPN: Where the evidence to be produced during the trial
is of such character as to be offensive to decency or public
morals, the court may motu proprio exclude the public
from the courtroom.
*The court may also exclude the public from trial upon
motion of the accused except court personnel and counsel
of the parties.
Section 22. Consolidation of trials of related offenses.
— Charges for offenses founded on the same facts
or forming part of a series of offenses of similar
character may be tried jointly at the discretion of the
court. (14a)
This contemplates a situation where separate
informations are filed:
1. For offenses founded on the same facts
2. For offenses which form part of a series of
offenses of similar character
In these cases, the charges may be tried jointly at the
court’s discretion.
The object of consolidation of trials of related offenses is
i. To avoid multiplicity of suits,
ii. Guard against oppression or abuse,
iii. Prevent delay,
iv. Clear congested dockets,
v. Simplify the work of the trial court and
vi. Save unnecessary cost and expenses.
Section 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. (15a)
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 1(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. (n)
DEMURRER TO EVIDENCE is a motion to dismiss due to the
insufficiency of the evidence presented by the
prosecution to overturn the presumption of innocence in
favor of the accused.
When do you file a DTE?
After the prosecution rests its case, the court may dismiss
the action on the ground of insufficiency of evidence:
a. On its own initiative after giving the prosecution
the opportunity to be heard
b. Upon demurrer to evidence filed by the accused
with or without leave of court.
How is a DTE made?
1. With Leave of Court- if the motion is denied, he
can still present evidence. The motion must be
file within a non-extendible period of 5 days after
the prosecution rests its case
*If leave is granted, the accused shall file the demurrer to
evidence within a non-extendible period of 10 days from
notice of the grant of leave of court
**The prosecution may oppose the demurrer to evidence
within a non-extendible period of 10 days from receipt of
demurrer
2. Without Leave of Court – If the motion I denied,
he loses the right to present evidence and the
case will be deemed submitted for decision
REASON: Accused is not allowed to wager on the outcome
of the judicial proceedings by espousing inconsistent
viewpoints for his own convenience.
Why is leave of court required?
To determine whether or not defendant in a criminal case
has filed the demurrer merely to stall the proceedings
If the demurrer is sustained by the court, the order of
dismissal is tantamount to an acquittal. Hence it is not
appealable.
Why is it not appealable?
Because it will place the accused in double jeopardy.
What happens if Demurrer is granted?
The accused is acquitted by the court, the accused has the
right to adduce evidence on the civil aspect of the case
unless the court also 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
the civil aspect of the case would be a nullity for the
reason of the constitutional right of the accused to due
process is thereby violated.
What happens if it is denied?
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 certiorari before judgment?
Section 24. Reopening. — At any time before finality
of the judgment of conviction, the judge may, motu
proprio or upon motion, with hearing in either case,
reopen the proceedings to avoid a miscarriage of
justice. The proceedings shall be terminated within
thirty (30) days from the order grating it. (n)
Requisites:
1. Reopening must be before the finality of a judgment
of conviction
2. Order is issued by the judge on his own initiative or
upon motion
3. Order is issued only after a hearing is conducted
4. Order intends to prevent a miscarriage of justice; and
presentation of additional and/or further evidence
should be terminated within 30 days from the
issuance of the order.
*The proceedings shall be terminated within 30 days from
the order granting it.