Criminal Procedure Part2

R E V I E W E R - P A R T I I

RULE 118 PRE-TRIAL

1. Pre-trial Conference is mandatory in criminal cases. In such pre-trial, the following are considered:a. Plea bargainingb. Stipulation of factsc. Identification of evidenced. Waiver of objections to admissibility of evidencee. Modification of order of trial if accused admits the charge but interposes lawful

defensef. Other matters which will promote a fair and expeditious trial

2. What are the requisites of pre-trial agreements and admissions (stipulation of facts)? a. In writingb. Signed by the accused and counsel

The agreements covering matters referred to in section 1 of this Rule (plea bargaining, etc.) need to be approved by the court.

The purpose of requiring the accused to sign the stipulation of facts is to further safeguard his rights against improvident or unauthorized agreement or admission which his counsel may have entered into without his knowledge. (People vs. Uy, 2000)

3. If the counsel for the accused or the prosecutor does not appear at the pre-trial and does not offer an acceptable excuse, he may be penalized by the court.

4. What is a pre-trial order? It is an order issued by the court reciting the actions taken, the facts stipulated and the evidence marked during the pre-trial conference. Such order binds the parties and limits the trial to those matters not disposed of.

5. What if the accused believes that the pre-trial order contains mistakes or matters which were not taken up during the pre-trial? He must move to correct the mistake or modify the pre-trial order, otherwise, he will be deemed to have waived, and be barred from questioning the same later.

RULE 119 TRIAL

1. From the day when the accused pleads not guilty upon arraignment, he shall have 15 days to prepare for trial which includes pre-trial. The trial shall commence within 30 days from receipt of pre-trial order.

2. The trial shall be continuous (day to day as far as practicable) and the entire trial period shall not exceed 180 days except as otherwise authorized by the Supreme Court.

3. The trial may be postponed for a reasonable period of time and for good cause as may be granted by the court.

4. The trial judge does not lose jurisdiction to try the case after the 180-day limit. He may, however, be penalized with disciplinary sanctions for failure to observe the prescribed limit without proper authorization by the Supreme Court.

Trial in Absentia

1. Requisites of Trial in Absentia (if not present, there’s denial of due process)a. The accused has been arraignedb. He has been notified of the trialc. His failure to appear is unjustified

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2. The purpose of trial in absentia is to speed up the disposition of criminal cases. (People vs. Agbulos, 1993)

3. What are the effects of trial in absentia? The accused waives the right to present evidence and cross-examine the witnesses against him. (People vs. Landicho, 1996) The accused’s waiver does not mean, however, that the prosecution is deprived of the right to require the presence of the accused for purposes of identification by the witnesses which is vital for conviction of the accused, except where he unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial.

Exclusions in the Computation of Time

1. The following periods shall not be included in the computation of time of trial:a. Delay resulting from other proceedings concerning the accused including but not

limited to:i. Delay resulting from physical or mental examinationii. Delay resulting from other criminal proceedings against accusediii. Delay resulting from extraordinary remedies against interlocutory ordersiv. Delay resulting from pre-trial proceedings provided not exceeding 30 daysv. Delay resulting from orders of inhibition or proceedings for change of venuevi. Delay resulting from the existence of a prejudicial questionvii. Delay attributable to any period not exceeding 30 days and the accused is

under advisementb. Delay resulting from absence or unavailability of an essential witnessc. Delay resulting from mental incompetence or physical inability of the accused to

stand triald. 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. Reasonable period of delay when accused is joined for trial with co-accusedf. Delay resulting from continuance granted by the court motu propio

Factors for Granting Continuance

1. Whether the failure to grant continuance would make a continuation of the proceeding impossible or result in a miscarriage of justice.

2. The case, as a whole, is novel, unusual and complex, or it is unreasonable to expect adequate preparation within the periods of time established therein.

Time Limit Following an Order for New Trial

General Rule: After an order for new trial is issued, the trial commences within 30 days from notice of the order.

Exception: If the 30-day period becomes impractical due to unavailability of the witnesses and other factors, it may be extended by the court but in no case should it exceed 180 days from notice of said order for new trial.

Public Attorney’s Duties Where Accused is Imprisoned

1. If the accused is imprisoned, the public attorney has a duty to obtain the presence of the prisoner for trial or cause notice to be served on the person having custody of the prisoner requiring such person to advise the prisoner of his right to demand trial.

2. The custodian will then inform the prisoner of the latter’s right to demand trial. If the prisoner demands trial, the custodian should then inform the public attorney of such demand.

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3. Upon notification, the public attorney should then seek to obtain the presence of the prisoner for trial.

Sanctions Imposed on Private Counsel, Public Attorney or the Prosecutor

Acts which will evoke the sanctions:1. Knowingly allowing the case to be set on trial without disclosing that a

necessary witness would be unavailable;2. Files a motion solely for delay, knowing it to be frivolous and without merit;3. Knowingly makes a false statement in order to obtain continuance;4. Willfully fails to proceed to trial without justification.

The Sanctions:1. Private Defense Counsel – fine not exceeding P20, 000 + criminal sanctions,

if any.2. Counsel de officio, Public Attorney or Prosecutor – fine not exceeding P5,

000 + 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 + criminal sanctions, if any.

The sanctions are designed to speed up the trial and disposition of the cases and to encourage the lawyers to go to court ready for trial and not “ready to postpone.”

Speedy Trial

1. The accused should be brought to trial within 30 days from the date the court acquires jurisdiction over the person of the accused (Rule 116, Section 1g). If he is not brought to trial within the period specified, he may quash the information on the ground of denial of his right to speedy trial. Failure to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under Section 9, Rule 120.

2. Arraignment must be set within 30 days from the date the court acquires jurisdiction over the person of the accused, and within the same period, the court must set the case for pre-trial, and within 30 days from the receipt of the pre-trial order, the trial must be commenced.

Order of Trial

1. Order of Trial Prosecution presents evidence to prove the charge and, in the proper case, the

civil liability. The accused presents evidence to prove his defense and damages, if any. The prosecution, then the defense, may present rebuttal and sur-rebuttal

evidence unless the court, in furtherance of justice, permits them to present additional evidence.

Upon admission of the evidence by the parties, the case is deemed submitted for decision.

2. The order of the trial may be modified, at the discretion of the judge, if the accused admits the act or omission charged in the complaint or information but interposes a lawful defense.

3. The order of trial is intended to safeguard the right of the accused to be presumed innocent until the contrary is proved.

4. The accused has the right to demand from the prosecution the list of prosecution witnesses, but the prosecution may call witnesses other than as listed even when the

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latter heard the testimonies of other witnesses. Furthermore, the prosecution has the discretion to choose the order of its witnesses.

5. Due Process The prosecution is entitled to due process. This means that it must be allowed to

completely present its evidence. Pervasive and prejudicial publicity may deprive an accused of his right to a fair

trial. To warrant such a finding, however, there must be allegation and proof that the judge has been unduly influenced.

Judges must not only be impartial, but must also appear impartial. However, this does not mean that the judge must remain passive during the proceedings. It’s the judge’s prerogative and duty to ask clarificatory questions to ferret out the truth.

6. Undue Interference There is undue interference by the judge if he propounds questions to the

witnesses which will have the effect of or will tend to build or bolster the case for one of the parties.

Application for Examination of Witness for Accused Before Trial

The accused may have witnesses conditionally examined in his behalf. The motion shall state:

Name and residence of the witness Substance of his testimony The witness is sick and cannot attend trial or he resides more than 100

km from the place of trial and has no means to attend the same

The motion should be supported by affidavit of the accused and such other evidence as the court may require.

Examination of Defense Witnesses

Deposition Definition: Deposition 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: The purpose of taking depositions are to:i. Greater assistance to the parties in ascertaining the truth and

checking and preventing perjuryii. Provide an effective means of detecting and exposing false,

fraudulent claims and defensesiii. Make available in a simple, convenient and inexpensive way, facts

which otherwise could not be proved except with greater difficultyiv. Educate the parties in advance of trial as to the real value of their

claims and defenses thereby encouraging settlementsv. Expedite litigation

vi. Prevent delayvii. Simplify and narrow the issues

viii. Expedite and facilitate both preparation and trial

The court shall issue an order directing that the witness for the accused be examined at a specific date, time and place.

The said order should be served on the prosecutor at least 3 days before the scheduled examination.

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Who should make the examination? The examination should be taken before a judge or a member of the Bar in good standing so designated by the judge. It may also be made before an inferior court designated in the order of a superior court.

Bail to Secure the Appearance of Material Witness

If the court is satisfied upon proof or oath that a material witness will not testify when required, it may order the witness to post bail in such sum as may be deemed proper. If the witness refuses to post bail, the court shall imprison him until he complies or is legally discharged after his testimony has been taken.

Examination of Witness for the Prosecution

1. The witness for the prosecution may be conditionally examined by the court where the case is pending if said witness is: Too sick to appear at the trial; or 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 the Rule on Examination of a Child Witness which took effect on December 15, 2000.

Joint Trial

1. When two or more defendants are jointly charged with any offense, they shall be tried jointly, unless the court in its discretion upon motion of the prosecution or any of the defendants orders a separate trial.

2. Where the conditions are fulfilled, joint trial is automatic, without need for the trial court to issue an order to that effect.

3. The grant of separate trial rests in the sound discretion of the court and is not a matter of right to the accused, especially where it is sought after the presentation of the evidence of the prosecution. In such separate trial, only the accused presenting evidence has to be present. And the evidence to be adduced by each accused should not be considered as evidence against the other accused.

State Witness

1. Requisites to be a state witness:a. Two or more persons are jointly charged with the commission of an offenseb. The application for discharge is filed by the prosecution before it rests its casec. Absolute necessity for the testimony of the accusedd. There is no other direct evidence available for the proper prosecution of the

offensee. Testimony of the accused can be substantially corroborated in its material pointsf. Accused does not appear to be the most guilty

Means that he does not appear to have the highest degree of culpability in terms of participation in the commission of the offense and not necessarily in the severity of the penalty imposed.

The fact that there was conspiracy does not preclude one from being discharged as a state witness. What the court takes into account is the gravity or nature of acts committed by the accused to be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them.

g. Accused has not been convicted of any offense involving moral turpitude.

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2. The defense should be afforded opportunity to oppose the motion to discharge an accused to be a state witness.

3. Any question against the order of the court to discharge an accused to be used as state witness must be raised in the trial court; it cannot be considered on appeal. Where there is, however, a showing of grave abuse of discretion, the order of the trial court may be challenged in a petition for certiorari and prohibition.

4. Two types of witness immunitya. Transactional immunity – witness can no longer be prosecuted for any offense

whatsoever arising out of the act or transaction.b. Use-And-Derivative-Use-Immunity – witness is only assured that his or her

particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.

5. The discharge of an accused to be a state witness amounts to an acquittal and is a bar to future prosecution for the same offense. Where an accused has been discharged to be utilized as state witness and he

thus testified, the fact that the discharge was erroneous as the conditions for discharge were not complied with did not thereby nullify his being precluded from re-inclusion in the information or from being charged anew for the same offense or for an attempt or frustration thereof, or for crimes necessarily included in or necessarily including those offense.

Mistake in Charging the Proper Offense

1. When, at any time before judgment, it becomes manifest 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 said accused shall not be discharged if there appears to be good cause to detain him.

2. If there appears to be good cause to detain the accused, the court shall commit the accused and dismiss the original case upon the filing of the proper information.

Appointment of Acting Prosecutor

When a prosecutor, his assistant or deputy is disqualified to act, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor.

Exclusion of the Public

The public may be excluded from the courtroom when evidence to be produced is offensive to decency or public morals.

Consolidation of Trials of Related Offenses

1. Charges for offenses founded on the same facts or forming part of a series of offenses or similar character may be tried jointly at the court’s discretion.

2. The purpose of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties litigant.

3. While consolidation of cases and joint trial of related offenses and the rendition of a consolidated decision are allowed, the court cannot convict an accused of a complex crime constitutive of the various crimes alleged in the consolidated cases.

Demurrer to Evidence

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1. Definition: Demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue.

2. After the prosecution shall have rested its case, the case may be dismissed in any of the following manner:a. Court on its own initiative can dismiss the case after giving prosecution

opportunity to be heardb. Accused files demurrer with or without leave of courtc. If the demurrer is denied:

With leave of court, accused can present his evidence Without leave of court, accused waives right to present evidence

3. With or Without Leave of Court With leave – if the motion is denied, he can still present evidence Without leave – if the motion is denied, he loses the right to present evidence

and the case will be deemed submitted for decision

4. If there are two or more accused and only one of them presents a demurrer to evidence, without leave of court, the trial court may defer resolution thereof until the decision is rendered on the other accused.

5. An order denying the motion for leave of court to file a demurer shall not be reviewable by appeal or by certiorari before judgment. This is because demurrer is merely interlocutory.

Reopening of Case

At any time before finality of judgment of conviction, judge may, motu proprio or upon motion, with hearing in either case reopen to avoid miscarriage of justice.

RULE 120 JUDGMENT

Judgment

1. Definition: Adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability, if any. It is a judicial act which settles the issues, fixes the rights and liabilities of the parties, and determines the proceeding, and is regarded as the sentence of the law pronounced by the court on the action or question before it.

2. Requisites:a. Written in official languageb. Personally and directly prepared by the judgec. Signed by himd. Contains clearly and distinctly a statement of the facts and the law upon which it

is based A verbal order does not meet the requisites. As such, it can be rescinded

without prejudicing the rights of the accused. It has no legal force and effect. Article VIII, Section 14, par. 1 of the Constitution requires that the decisions

of the court shall contain the facts and the law on which they are based. The rationale is that the losing party is entitled to know why he lost, so he may appeal to a higher court.

3. The judge who penned the decision need not be the one who heard the case. The judge can rely on the transcript of stenographic notes taken during the trial.

Contents of Judgment

1. Legal qualification of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending the commission.

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2. Participation of the accused in the commission of the offense, whether as principal, accomplice or accessory

3. The penalty imposed upon the accused4. Civil liability or damages caused by the wrongful act to be recovered from the

accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived.

Acquittal and Dismissal

1. Acquittal is a finding of not guilty based on the merits, that is, the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case and upon motion of the accused on the ground that the evidence produced fails to show beyond doubt that the accused is guilty.

2. Acquittal vs. Dismissal Acquittal is always based on the merits while in dismissal, there is termination

not on the merits and no finding of guilt is made 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 complaint or information is not valid or sufficient in form and in substance.

3. Dismissal may amount to a acquittal:a. Here the dismissal is based on a demurrer to evidenceb. Where the dismissal is based on the denial of the right to a speedy trial

4. Acquittal of an accused based on reasonable ground does not bar the offended party from filing a separate civil action based on a quasi-delict. In fact, the court may hold an accused civilly liable even when it acquits him.

Judgment for Two or More Offenses

A complaint or information must charge only one offense. However, if the accused does not object to the duplicity before he enters his plea, he is deemed to have waived the defect. He may be found guilty for as many offenses as alleged in the complaint or information as may have been duly proved.

Variance Between Allegation and Proof

1. General Rule: If the prosecution proves an offense included in the offense charged in the information, the accused may be validly convicted of such offense proved.

2. Exception: The general rule does not apply where facts supervened after the filing of the information which changes the nature of the offense.

3. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former constitute the latter. An offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.

Promulgation of Judgment

1. Definition: Promulgation of judgment in criminal cases is the reading of the judgment or sentence in the presence of the accused and the judge of the court who rendered it.

2. It is the filing of the decision or judgment with the clerk of court which gives it validity and binding effect.

3. General Rule: Promulgation should be made in the presence of the accused and the judge of the court who rendered the decision.

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4. Exception to the Mandatory Presence of the Accused: a. Where the conviction is for a light offense, in which case the accused may

appear through counsel or representative5. If judgment is one of conviction and the accused is absent without justifiable cause,

the court shall order his arrest and he shall lose the remedies available in the Rules against the judgment.

6. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court.

7. A judgment promulgated at a time when the judge who rendered and signed it had ceased to hold office is null and void.

Modification of Judgment

1. A judgment of conviction may be modified or set aside before it becomes final or before appeal is perfected.

2. General Rule: A judgment becomes final:a. after the lapse of the period for perfecting an appeal; or b. when the sentence has been partially or totally satisfied or served; or c. when the accused has waived in writing his right to appeal; ord. accused has applied for probation.

3. Exception: When the Death Penalty is imposed by the trial court, the SC automatically reviews the decision.

Probation

1. The period to file an application for probation is after the accused shall have been convicted by the trial court and within the period for perfecting an appeal.

2. Probation is a mere privilege and is revocable before final discharge of the probationer by the court.

RULE 121 NEW TRIAL OR RECONSIDERATION

Filing of New Trial or Reconsideration

1. Filed by the accused.2. Before final judgment of conviction or during appeal.

Grounds for New Trial

1. Errors of law or irregularities prejudicial to the substantial rights of the accused a. errors of law or irregularities committed during trialb. errors/irregularities are prejudicial to the substantial rights of the accused

The following are not considered as irregularities:- Loss of records (remedy is reconstitution of missing evidence)- Loss of stenographic notes (remedy is reconstruction of the testimony of

the witness)

2. New and material evidence has been discovered a. evidence discovered after trialb. evidence could not have been discovered and produced at the trial even with the

exercise of reasonable diligencec. evidence is material and would probably change the judgment if admitted

The following are not considered as newly discovered evidence:- Affidavit of desistance/recantation.

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- Proposed testimonies of witnesses. - Merely forgotten evidence.

Although the Rules of Court enumerates only the above two as the grounds for new trial, the case of Navarra vs. CA states that if the negligence or mistake of counsel is so gross as to deprive the client of his right to due process of law, the accused may be entitled to a new trial.

Grant of a New Trial is not Appealable; Relief

The grant of a New Trial is not appealable since it is not a final judgment. To challenge such grant, a petition for certiorari and prohibition may be filed.

Grounds for Reconsideration

1. Errors of law in the judgment2. Errors of fact in the judgment

Form of Motion and Notice to Prosecutor

The motion must:a. Be in writingb. State the grounds on which it is basedc. Supported by affidavits of witnesses (if based on the ground of newly discovered

evidence)d. Be given to the prosecutor

Effects of Granting a New Trial or Reconsideration

1. Original judgment shall be set aside.2. The case shall be tried de novo and a new judgment be rendered accordingly.3. When the new trial is granted on the ground of errors of law or irregularities

committed during trial, all proceedings and evidence affected thereby shall be set aside and taken anew. The court may allow introduction of additional evidence.

4. When the new trial is granted on the ground of newly discovered evidence, the latter shall be taken and considered together with the evidence already in the record.

Erroneous Acquittal; Double Jeopardy Applies

The case of People vs. Hernando states that erroneous acquittal of the accused remains as the final verdict. Errors or irregularities, which do not render the proceedings a nullity, will not defeat a plea of antrefois acquit.

RULE 122 APPEAL

Who may appeal

Any party may appeal, unless accused will be placed in double jeopardy.

How to Appeal

To the RTC1. file a Notice of Appeal with the court which rendered the judgment2. serve a copy of the notice upon the adverse party

To the CA1. When RTC exercised original jurisdiction:2. File a Notice of Appeal with the RTC3. Serve a copy of the notice upon the adverse party4. When RTC exercised appellate jurisdiction:

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5. Follow Rule 42 on Petition for Review

Sandiganbayan1. when RTC exercised original jurisdiction:2. file a Notice of Appeal with the RTC

a. serve a copy of the notice upon the adverse partyb. when RTC exercised appellate jurisdiction:c. follow Rule 42 on Petition for Review

SC1. where RTC imposes reclusion perpetua or life imprisonment

a. file a Notice of Appeal with the RTC.b. Serve a copy of the Notice upon the adverse party

2. where RTC imposes death penaltya. automatic review of SC as provided by sec. 10 of Rule 122

3. for CA decisionsa. file an ordinary appealb. for questions of facts and lawc. follow Rule 42 on Petition for Reviewd. for questions of law (all other appeals)e. follow Rule 45 on Petition for Review on Certiorari

When appeal to be taken

Appeal is taken within 15 days from promulgation of the judgment. This period shall be suspended from the time a motion for new trial or reconsideration is filed until notice of overruling the motion has been served upon the accused at which time the balance of the period begins to run.

Effect of appeal by any of several accused

An appeal taken by one or more of several accused shall not affect those who did not appeal, except if the judgment is favorable and applicable to the latter.

The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment.

Upon perfection of the appeal, the execution of the judgment appealed from shall be stayed as to the appealing party.

Withdrawal of appeal

The courts may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court, in which case the judgment shall be final.

RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS

1. General Rule The procedure in the Regional Trial Court shall be applicable to the

procedure in Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Court.

2. Exceptions Particular provision is made applicable only to such courts In cases governed by the Rule on Summary Procedure

- criminal case where the penalty prescribed does not exceed 6 months imprisonment or a fine of P1,000 or both

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- complaint or information filed directly in court without need of a prior preliminary investigation or preliminary examination- case decided based on affidavits submitted by the parties

RULE 124 PROCEDURE IN THE COURT OF APPEALS

Court of Appeals

The Court of Appeals has no jurisdiction without judgment of conviction.

The Court of Appeals shall give precedence in the disposition of appeals of accused who are under detention. It shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties.

Judgment of the lower courts shall be reversed or modified only when the Court of Appeals is of the opinion that error was committed which injuriously affected the substantial rights of the appellant after it examined the record and evidence adduced by the parties.

Although not often done in the judicial system, the case of People vs. Calayca states that the appellate court may reverse the trial court’s decision on the basis of grounds other than those that the parties raised as errors.

Power of the Court of Appeals

The Court of Appeals may reverse, affirm, or modify the judgment; increase or reduce the penalty imposed; remand the case for new trial or re-trial; or dismiss the case. It is discretionary on its part whether or not to set a case for oral argument.

It shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases:

a. falling within its original jurisdictionb. involving claims for damages arising from provisional remedies, orc. where the court grants a new trial based only on the ground of newly

discovered evidence.

Quorum and Voting of the Court of Appeals

Three Justices constitute a quorum for the sessions of a division

Unanimous vote of the 3 Justices of a division shall be necessary to pronounce a judgment or a final resolution. In the event that there is no unanimous vote, the Presiding Justice shall direct the raffle committee of the Court to designate two additional Justices in the division hearing the case and the concurrence of a majority of such division shall be necessary for the pronouncement pf a judgment or final order.

Should the Court of Appeals impose the penalty of death, reclusion perpetua, or life imprisonment after discussing the evidence and law involved, the case is certified and immediately elevated to the Supreme Court for review.

Accused Appellant An accused-appellant may change his theory on appeal; thus the case opens the

whole action for review on any questioning including those not raised by the parties.

When the accused appeals a judgment of conviction, he waives the constitutional safeguard against double jeopardy; but every circumstance in favor of the accused should be considered.

Upon the death of an accused pending appeal from his conviction, the criminal action is extinguished, and the civil aspect instituted therewith for recovery of civil liability ex

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delicto is ipso facto extinguished. The other party may just file a separate civil case against the estate of the accused who died.

Appointment of Counsel de Officio

A counsel de officio is a court appointed lawyer to the accused.

1. He is appointed if it appears from the record of the case that: a. The accused is confined in prison,b. The accused is without counsel de parte on appeal, orc. The accused signed the notice of appeal himself.

2. He may be appointed upon the request of an appellant, 10 days from receipt of the notice to file brief and the latter establishes his right to have one.

Dismissal of Appeal for Abandonment or Failure to Prosecute

Requirementa. upon motion of the appellee or motu propiob. with notice to the appellant

Groundsa. Appellant fails to file his brief within the time prescribed, except when he is represented by a counsel de oficio.b. Appellant escapes from prison or confinement, jumps bail, or flees to a foreign country during pendency of the appeal.

Effect- Appealed judgment becomes final.

Judgment of the Court of Appeals/New Trial/Reconsideration

When the entry of judgment of the Court of Appeals is issued, a certified true copy of the judgment shall be attached to the original record which shall be remanded to the clerk of court from which the appeal was taken.

The appellant may move for a new trial any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting him becomes final.

A motion for reconsideration shall be made within 15 days after notice of the decision or final order of the Court of Appeals.

RULE 125 PROCEDURE IN THE SUPREME COURT

1. Procedure in the SC in appealed cases is the same as in the CA, unless otherwise provided by the Constitution or law

2. A case may reach the SC for final adjudication in the following manner: Automatic review

In all cases where death penalty is imposed by the trial court Records shall be forwarded to the SC for automatic review and judgment

Ordinary appeal Where penalty imposed is life imprisonment Applicable also where a lesser penalty is imposed but involving offenses

committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed

In both cases, case is directly appealable to the SC by filing a notice of appeal

Petition for review on certiorari

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General Rule: judgments of RTCs may be appealed to the SC only by petition for review on certiorari in accordance with Rule 45 of the Rules of Court

Exception: Criminal cases where penalty imposed is life imprisonment or reclusion perpetua

3. A direct appeal to the SC on questions of in criminal cases in which penalty imposed is not death or life imprisonment precludes the review of the facts

4. Questions of law and fact come within the jurisdiction of the CA

5. When a criminal case is appealed to the SC, the whole case is then thrown open for review It becomes the duty of the SC to correct errors found in the judgment appealed

from Sc may correct errors whether they are made the subject of assignments or error

or not

6. Effect of appeal on the bail of the accused: When accused is charged with offense which under the existing law at the time

of its commission and time of application for bail is punishable by a PENALTY LOWER THAN RECLUSION PERPETUA and is out on bail, and after trial is convicted by the trial court of the offense charges or of a lesser offenses than that charged in the complaint or information, he is allowed to remain free on his original bail pending the resolution of appeal – unless the proper court directs otherwise

When accused is charged with CAPITAL OFFENSE or which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail, and after trial is convicted by the trial court of a lesser offense than that charged in the complaint or info – same rule set forth in the preceding paragraph shall be applied;

When accused is charged with CAPITAL OFFENSE of an offense which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, -- bond is cancelled and accused shall be placed in confinement pending resolution of his appeal

When, in criminal cases pending appeal before the SC, accused is still on provisional liberty, the ff. rules are laid down:i. Court shall order the bondsman to surrender the accused within 10 days

from notice, to the court of origin. Bondsman shall inform this court of fact of surrender. Then the court shall cancel the bond;

ii. RTC shall order the transmittal of the accused to the National Bureau of Prisons thru the PNP as the accused shall remain under confinement pending resolution of his appeal;

iii. If accused – appellant is not surrendered within the aforesaid period of ten (10) days, his bond shall be forfeited and an order of arrest shall be issued by this court. Appeal taken by the accused shall also be dismissed under Sec. 8 Rule

124 of Rules of Court as he shall be deemed to have jumped his bail

REHEARING OF CRIMINAL CASE IN THE SUPREME COURT 1. A case is reheard when the court en banc is equally divided in opinion or

necessary majority cannot be had.

2. If rehearing en banc no decision is reached, judgment of conviction of lower court shall be reversed and accused is acquitted. If division of opinion or lack of required votes refers to the propriety of imposing

the death penalty, the penalty next lower in degree shall be imposed

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RULE 126 SEARCH AND SEIZURE

1. Elements of a search warrant An order in writing; Signed by judge in the name of the People of the Philippines; Commanding a peace officer to search personal property; and Bring it before the court

2. Nature of a search warrant It is in the nature of criminal processes and may be invoked only in furtherance

of public prosecutions Have no relation to civil processes or trials It is not available to individuals in the course of civil proceedings; it is not for the

maintenance of any private right. It is INTERLOCUTORY in character – it leaves something more to be done, the

determination of the guilt of the accusedGeneral warrant: A process which authorizes the search and seizure of things, in a general

manner This does not specify or describe with particularity the things searched and

seized This kind of warrant is constitutionally objectionable – therefore VOID

3. Object of a search warrant – to obtain the goods, and bring the person in whose custody they are found, either to be recognized as a witness or to be subject to such further proceedings as the ends of justice may require

4. A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued Otherwise, it is VOID The proceedings upon search warrants must be absolutely legal It will always be construed strictly without going the full length of requiring

technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an

officer undertakes to justify under it.

5. Search distinguished from seizure Search

it is an examination of a man’s house, buildings or other premises, or of his person, with a view of some evidence of guilt to be used in the prosecution of a criminal action for some offense with which he is charged

Ordinarily implies a request by an officer of the law Seizure

it is the physical taking of a thing into custody Contemplates a forcible disposition of the owner

6. A good and practical rule of thumb to measure the nearness of time given in the affidavit as to the date of the alleged offense, and the time of making the affidavit – The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause

7. PERSONAL PROPERTY TO BE SEIZED

A. Kinds of personal property to be seized: Subject of the offense; Proceeds or fruits of the offense; and The means used or intended to be used for committing an offense Search warrants have been allowed to search for the ff:

Stolen goods

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Those supposed to have been smuggled into the country in violation of the revenue laws

Implements of gaming and counterfeiting Lottery tickets Prohibited liquors kept for sale contrary to law Obscene books and papers kept for sale or circulation Powder and other explosive and dangerous materials so kept as to

endanger public safety Slot machines, being gambling devices

B. Property seized is not required to be owned by the person against whom the search warrant is directed

C. It s not necessary that there be arrest or prosecution before seizure could be affected

D. The fact that a thing is a corpus delicti of a crime does not justify the seizure without a warrant

8. Section 2 Article III of the 1987 Constitution is the constitutional basis of the rule on search and seizure

9. Requisites for the issuance of a valid search warranta. Probable cause

It is such facts and circumstances antecedent to the issuance of the warrant, that are in themselves sufficient to induce a cautious man to believe that the person against whom the search warrant is applied, had committed, or is about to commit, a crime

Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

Probable cause presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts or committed specific omissions violating a given provision of our criminal laws (Stonehill v. Diokno)

Probable cause is determined in the light of the conditions obtaining in given situations, but there is no general formula or fixed rule for the determination of the existence of probable cause. Existence depends of a large degree upon the finding or of the opinion of

the judge conducting the examination.b. Which must be determined personally by the judge himself, and not by the

applicant or any other person; A judge may reverse his finding of probable cause, provided that the

rectification is based on sound and valid grounds This requirement does not extend to deportation proceedings (Morano vs.

Vivo) Immigration Commissioner has authority to determine probable cause ONLY

for the purpose of issuing a warrant of arrest.c. The judge must, before issuing the warrant, personally examine in the form of

searching questions and answers, in writing and under oath, the complainant and any witness he may produce, on facts personally known to them; Application for a search warrant is heard ex-parte, there is neither a trial nor

a part of the trial Examination must be under oath and may not be in public Examination of witnesses to determine probable cause:

Judge must examine witnesses personally Examination must be under oath; and Examination must be reduced to writing in the form of searching

questions and answers

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The test in determining whether the allegations in an application for a search warrant are based on personal knowledge – should not be based on mere hearsay, nor mere suspicion or belief

d. The probable cause must be in connection with one specific offense; This is to outlaw general warrants Otherwise, this would place the sanctity of the domicile and the privacy of

communication and correspondence at the mercy of the whims, caprice or passion of peace officers.

e. The warrant issued must particularly describe the place to be searched and the persons or things to be seized; and This requirement is sufficient if the officer to whom the warrant is directed is

enabled to locate the same definitely and with certainty. This does not require the true legal description to be given in a required form The constitution requires that it be a description which particularly points to a

definitely ascertainable place, so as to exclude all others. The description must be so particular that the officer charged with the

execution of the warrant will be left with no discretion respecting the property to be taken.

It may be said that the person to be searched is particularly described in the search warrant when his name is stated in the search warrant, or if name is unknown, he is designated by words sufficient to enable the officer to identify him without difficulty

f. The sworn statements together with the affidavits submitted by witnesses must be attached to the record.

10. If the officer follows the command of the warrant, he is protected, but if he exceeds the command, he is not protected by the warrant and he only assumes to act without process If the officer acts within the command of his warrant, he is protected even if the

complaint is proven to have been unfounded. Obeying strictly the command of his warrant, he may break open outer or inner

doors, and his justification does not depend upon his discovering that for which he is to make the search

If officer is refused admittance to the place of directed search after giving notice of his purpose and authority, he may break open any outer or inner door or window of a house or any part of a house or anything to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

Demand is necessary prior to a breaking in of the doors, only where some person is found in charge of the building to be searched.

11. In searching a house, room or other premises, such shall be done in the presence of a lawful occupant or any member of his family, or in the presence of at least 2 witnesses of sufficient age and discretion, residing in the same locality The searching officer should also be considerate of the premises searched; he

should mar the premises as little as possible, and should carefully replace anything he finds necessary to remove.

12. Warrant must be direct and served in the day time Exception: if affidavit asserts that the property is on the person or in the place

ordered to be searched – here, warrant may be served anytime of the day or night.

The general rule prohibits search in the night because sometimes robberies happen, under the pretense of searches

13. A warrant is valid for ten days from its date. After such time, it is VOID A search warrant cannot be used everyday for 10 days, and for a different

purpose each day – warrant used to seize one thing cannot be used as authority to make another search

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This rule is NOT APPLICABLE when the search for a property mentioned in the warrant was not completed on the day when the warrant was issued and had to be continued the next day

14. Officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant or any member of the family or at least 2 witnesses of sufficient age and discretion residing in the same locality.

15. Officer must also deliver the property seized to the judge who issued the warrant, with the true inventory, all under oath

16. Searches incident to lawful arrest This is the most important exception to the necessity for a search warrant This right includes in both instances that of searching the person who is arrested,

in order to find and seize the things connected with the crime as its fruits or as the means by which it was committed

Search made without a warrant cannot be justified as an incident of arrest unless the arrest itself was lawful

Search must be made at the place of the arrest and contemporaneous with the arrest, otherwise it is not an incident to the arrest. In other words, a search is not incidental to the arrest unless the search is made at the place of arrest, contemporaneously with the arrest.

The right is limited to the time and place of the arrest

17. Other cases where warrantless searches and seizures are valid Search of moving vehicles

Checkpoints are valid (Valmonte case) Warrantless search of aircrafts as well as fishing vessels breaching our

fishery laws Consented search without a warrant Seizure of evidence in plain view Enforcement of custom laws

Exception: in a dwelling house Vessel can be quickly moved out of the locality or jurisdiction in which the

search warrant must be sought before such warrant could be secured When search is based on probable cause under extraordinary circumstances

18. Unreasonable search and seizure is such where it is not authorized by statute, or where the conditions prescribed by the stature have not been met What constitutes a reasonable or unreasonable search or seizure in any

particular case is purely a judicial question Such is determinable from a consideration of the circumstances involved,

including the ff: The purpose of the search Presence or absence of probable cause Manner in which the search and seizure was made Place or thing searched Character of the articles procured.

Searches and seizure inside a home are presumptively unreasonable Constitutional prohibition against unlawful searches and seizure applies as a

restraint directed only against the government and its agencies tasked with the enforcement of the law. It could thus only be invoked against the State.

19. The legality of a seizure can be contested only by the party whose rights have been impaired thereby The objection to an unlawful search and seizure is purely personal and cannot be

availed by third parties The remedy for questioning the validity of a search warrant can only be sought in

the court that issued it, not the sala of another judge of concurrent jurisdiction – this is done through a motion to quash warrant of arrest

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Objections to the legality of the search warrant and to the admissibility of the evidence obtained are deemed waived when no objection to the legality of the search warrant was raised during the trial.

20. The Moncado Ruling, that illegally seized documents, papers and things are admissible in evidence, is already ABANDONED The exclusion of such evidence is the only practical means of enforcing the

constitutional injunction against unreasonable searches and seizures. The Non-exclusionary rule is contrary to the letter and spirit of the prohibition

against unreasonable searches and seizures

21. Through RA No. 4200 or the Anti-Tapping Law, tapping of phone wires of the premises of an accused, wherein persons accused of violation criminal laws are engaged in conversation constitutes a violation of the Constitutional provision on the right of the people to secure in their persons, papers and effects. RA No. 4200 was approved on 19 June 1965 It also penalizes other acts similar to wire-tapping. Some similar acts are taping

or recording conversations of people, by others who are not authorized by the former to record or tape.

RULE 127 PROVISIONAL REMEDIES IN CRIMINAL CASES

1. Provisional remedy is one provided for present need or for the occasion that is one adopted to meet a particular exigency;

2. The following are the provisional remedies under the Rules of Court: Attachment (Rule 57) Injunction (Rule 58) Receivership (Rule 59) Delivery of personal property or Replevin(Rule 60) and Support Pendente Lite (Rule 61)

3. Purpose of provisional remedies Provisional remedies are applied pending litigation,

to secure the judgment or preserve the status quo If provisional remedies are applied to after

judgment, it is in order to preserve or dispose of the subject matter.

4. Although civil action is suspended until final judgment in the criminal case, the court is not deprived of its authority to issue preliminary and auxiliary writs which do not go into the merits of the case. Preliminary writs and auxiliary writs referred to are those such as the ff:

Preliminary injunction Attachment Appointment of receiver Fixing amounts of bonds

5. Attachment is a remedy afforded to the offended party to have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused This remedy is available in the following cases:

When action for recovery is on a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict and accused is about to abscond from the Philippines;

When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, or any officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any person in a fiduciary capacity, or for a willful violation of duty;

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When the accused has concealed, removed or disposed of his property or is about to do so;

When action is against a party guilty of fraud in contracting the debt upon which action is brought, or in the performance of incurred obligation;

When action is against a party who removed or disposed of his property or is about to do so, with intent to defraud his creditors; and

When the accused resides outside the Philippines This may be filed at the commencement of a criminal action or at any time

before entry of judgment as security for the satisfaction of any judgment that may be recovered in the aforementioned cases.

6. Public prosecutor has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party

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Criminal Procedure Part2

Documents

Transcript of Criminal Procedure Part2