Remedial Law- Crim Pro

7/29/2019 Remedial Law- Crim Pro

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RULE 115 RIGHTS OF THEACCUSED

What are the rights of theaccused in criminal

prosecutions?

1. To be presumed innocentuntil the contrary is proved

beyond reasonable doubt;2. To be informed of the natureand cause of the accusation

against him;3. To be present and defend inperson and by counsel at everystage of the proceedings, from


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arraignment to promulgationof judgment;

4. To testify as a witness in hisown behalf but subject tocross-examination on matters

covered by direct examination;5. To be exempt from beingcompelled to be a witnessagainst himself;

6. To confront and cross-examine the witnesses againsthim at the trial;

7.

To have compulsory processissued to secure theattendance of witnesses and


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production of other evidence inhis behalf;

8. To have a speedy, impartial,and public trial;

9. To appeal in all casesallowed and in the mannerprescribed by law.

Due Process

What are the two aspectsof the right to due process?

1. Substantive due process this refers to the intrinsicvalidity of the law


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2. Procedural due process one that hears before it

condemns, proceeds uponinquiry, and renders judgmentonly after trial and based on

the evidence presentedtherein.

Is it necessary to havetrial-type proceedings inorder to satisfy therequirement of due process?

No. There is no need for trial-type proceedings in order tosatisfy due process. What is


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important is that there was anopportunity to be heard. Notice

and hearing are the minimumrequirements of due process.

In general, what are therequirements of procedural

due process?

1. There must be an impartialand competent court with

judicial power to hear and

determine the matter before it;2. Jurisdiction must be lawfullyacquired over the person of the


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defendant or over the propertysubject of the proceeding;

3. The defendant must be givenan opportunity to be heard;

4. Judgment must be renderedupon lawful hearing.

In criminal cases, what arethe requirements of

procedural due process?

The requirements in criminal

cases are more stringent. Theyare:


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1. The accused must havebeen heard by a court of

competent jurisdiction;2. He must have beenproceeded against under

orderly processes of the law;3. He may be punished onlyafter inquiry and investigation;

4. There must be notice to theaccused;

5. The accused must be givenan opportunity to be heard;

6.

Judgment must be renderedwithin the authority of aconstitutional law.


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Presumption of Innocence

What is the meaning of theright of presumption ofinnocence?

The right means that thepresumption must be overcomeby evidence of guilt beyond

reasonable doubt. Guilt beyondreasonable doubt means thatthere is moral certainty as to the

guilt of the accused. Convictionshould be based on the strengthof the prosecution and not on theweakness of the defense. The


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significance of this is thataccusation is not synonymous

with guilt.

What are the exceptions tothe constitutionalpresumption of innocence?

1. Presumptions If there is areasonable connection betweenthe fact presumed and the factultimately proven from such

fact

Examples:


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a. When an accountablepublic officer fails to account

for funds or property thatshould be in his custody, heis presumed to be guilty of

malversation;b. Persons in possession ofrecently stolen goods arepresumed guilty of the

offense in connection withthe goods.

2.

Self-Defense One whoinvokes self-defense ispresumed guilty. The burdenof proving the elements of self-


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defense (unlawful aggression,reasonable necessity of the

means used to prevent or repelit; lack of sufficient provocationon the part of the one

defending himself) belongs tothe accused.

What is a reverse trial?

Usually, the prosecution presentsits evidence to establish the guilt

of the accused first. But areverse trial happens if theaccused admits the killing butclaims self-defense. He must first


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establish the elements of self-defense in order to overturn the

presumption that he was guilty ofthe offense.

Right to be present at thetrial

What are the requisites ofa valid trial in absentia?

1. The accused has alreadybeen arraigned;2. He has been duly notified ofthe trial


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3. His failure to appear at thetrial is unjustifiable.

Can the right to be presentat the trial be waived?

Yes, except in the followingsituations, where the presence ofthe accused at the trial is

required:

1.Arraignment;2.

During promulgation ofjudgment, except if it is for a

light offense;


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3. When the presence of theaccused at the trial is

necessary for purposes ofidentification, unless he admitsbeforehand that he is the same

person charged.

Right to Counsel

Is there a differencebetween the right to counselduring custodial investigation

and the right to counselduring the trial?


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Yes. In custodial investigation,the right to counsel can only be

waived in writing AND with theassistance of counsel. Thecounsel required in custodial

investigation is competent andindependent counsel, preferablyof his own (the suspects) choice.

During the trial, the right tocounsel means the right toeffective counsel.

The requirement is stricter duringcustodial investigation because atrial is done in public, while


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custodial investigation is not.The danger that confessions will

be extracted against the will ofthe defendant during custodialinvestigation does not really exist

during trial.

During trial the purpose ofcounsel is not so much to protect

him from being forced to confessbut to defend the accused.

Why is the right to counselafforded during trial?


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The right to counsel is embracedin the right to be heard.

When should the right tocounsel be invoked?

The right to counsel may beinvoked at any stage of theproceedings, even on appeal.

However, it can also be waived.The accused is deemed to havewaived his right to counsel when

he voluntarily submits himself tothe jurisdiction of the Court andproceeds with his defense.


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But in US v. Escalante andPeople v. Nang Kay (p. 532 of

Herrera Textbook), the Courtheld that the defendant cannotraise the question of his right to

have an attorney for the firsttime on appeal. If the question isnot raised in the trial court, theprosecution may go to trial. The

question will not be considered inthe appellate court for the firsttime when the accused fails to

raise it in the lower court.


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Is the duty of the court toappoint counsel-de-oficio

mandatory at all times?

No. The duty to appoint counsel-

do-oficio is mandatory only up toarraignment.

Does the mistake ofcounsel bind the client?

As a rule, the mistake of counsel

binds the client. Therefore, theclient cannot question a decisionon the ground that counsel wasan idiot. However, an exception


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to this is if counselmisrepresents himself as a

lawyer, and he turns out to be afake lawyer. In this case, theaccused is entitled to a new trial

because his right to berepresented by a member of thebar was violated. He was thusdenied of his right to counsel and

to due process.

Is the right to counselabsolute?

No. The right of choice must bereasonably exercised. The


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accused cannot insist on counselthat he cannot afford, one who is

not a member of the bar, or onewho declines for a valid reason,such as conflict of interest. Also,

the right of the accused tochoose counsel is subject to theright of the state to due processand to speedy and adequate

justice.

When can the accuseddefend himself in person?

The accused can defend himselfin person only if the court is


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convinced that he can properlyprotect his rights even without

the assistance of counsel.

Right to be a Witness on His

Own Behalf

What is the weight of thetestimony of an accused who

testifies on his own behalfbut refuses to be cross-examined?

The testimony will not be givenweight. It will not have probativevalue because the prosecution


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was not given a chance to testthe credibility of the testimony

through cross-examination.

Right Against Self-

Incrimination

What is the scope of theright against self-

incrimination?

The right against self-

incrimination covers testimonialcompulsion only and thecompulsion to produceincriminating documents, papers,


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and chattels. It does not coverthe compulsion to produce real or

physical evidence using the bodyof the accused.

Is there an exception tothe right against self-

incrimination?

The right cannot be invokedwhen the State has the right toinspect documents under its

police power, such as documentsof corporations.


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What is the rationale forprotecting the right against

self-incrimination?

There are two reasons:

1. For humanitarian reasons:To prevent the State, with allits coercive powers, from

extracting testimony that mayconvict the accused.

2. For practical reasons: Theaccused is likely to commitperjury if he were compelled totestify against himself.


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Who may invoke the rightagainst self-incrimination,

and when can they invokethe right?

1.An ordinary witness mayinvoke the right, but he may

only do so as eachincriminating question is asked.

2. The accused himself mayinvoke the right, and unlike theordinary witness, he may

altogether refuse to take thewitness stand and refuse toanswer any and all questions.


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But, once the accused waiveshis right and chooses to testify

in his own behalf, he may becross-examined on matterscovered in his direct

examination. He cannot refuseto answer questions duringcross-examination by claimingthat the answer that he will

give could incriminate him forthe crime with which he wascharged.

However, if the question duringcross-examination relates to acrime different from that with


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which he was charged, he canstill invoke the right and refuse

to answer.

Can the accused or witnessinvoke the right against self-incrimination if he is askedabout past criminality?

It depends. If he can still beprosecuted for it, questions aboutpast criminal liability are still

covered by the protection of theright against self-incrimination.But if he cannot be prosecuted


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for it anymore, he cannot invokethe right.

What are the rights of theaccused in the matter of

testifying or producingevidence?

1. Before the case is filed inCourt but after he has beentaken into custody or otherwisedeprived of his liberty

a. the right to be informed ofb. his right to remain silentand to counsel


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c. the right not to besubjected to force, violence,

threat, intimidation, or anyother means which vitiatefree will

d.

the right to have evidenceobtained in violation of theserights rejected

2.After the case is filed in courta. to refuse to be a witnessb.

not to have any prejudicewhatsoever result to him by

such refusal


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c. to testify in his ownbehalf subject to cross-

examination by theprosecution

d. while testifying, to refuseto answer a specific questionwhich tends to incriminatehis for some crime otherthan that for which he is

being prosecuted.

What are immunitystatutes?

The immunity statutes areclassified into two use immunity


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statutes and transactionalimmunity statutes.

Use immunity prohibits the useof a witness compelled

testimony and its fruits in anymanner in connection with thecriminal prosecution of thewitness. (Therefore, the witness

can still be prosecuted, but thecompelled testimony cannot beused against him.)

Transactional immunity grantsimmunity to the witness fromprosecution for an offense to


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which his compelled testimonyrelates. (Here, the witness cannot

be prosecuted at all.) Examplesare state witnesses and thosewho furnish information about

violations of the Internal RevenueCode, even if they themselvesoffered bribes to the publicofficial.

What is the effect of therefusal of the accused to

refuse to testify in his behalf?


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As a general rule, the silence ofthe accused should not prejudice

him.

However, in the following cases,

an unfavorable inference isdrawn from the failure of theaccused to testify:

1. If the prosecution hasalready established a primafacie case, the accused must

present proof to overturn theevidence of the prosecution.2. If the defense of the accusedis alibi and he does not testify,


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the inference is that the alibi isnot believable.

Is DNA testing covered bythe right against self-

incrimination?

No (recent SC ruling).

Right of Confrontation

What is the meaning of theright of confrontation?

It means that the accused canonly be tried using those


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witnesses that meet him face toface at the trial who give

testimony in his presence, withthe opportunity to cross-examinethem.

What are the reasons forthe right?

1. To allow the court to observethe demeanor of the witnesswhile testifying.

2.

To give the accused theopportunity to cross-examinethe witness in order to test


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their recollection andcredibility.

Can the right ofconfrontation be waived?

Yes, it can be waived eitherexpressly or impliedly. It iswaived impliedly when an

accused waives his right to bepresent at the trial. The right ofconfrontation may also be waived

by conduct amounting to arenunciation of the right to cross-examine. When the party wasgiven an opportunity to confront


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and cross-examine an opposingwitness but failed to take

advantage of it for reasonsattributable to himself alone, heis deemed to have waived the

right.

What happens to thetestimony of a witness who

dies or becomes unavailable?

It depends. If the other party

had the opportunity to cross-examine the witness before hedied or became unavailable, thetestimony may be used as


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evidence. However, if the otherparty did not even have the

opportunity to cross-examinebefore the subsequent death orunavailability of the witness, the

testimony will have no probativevalue. (An opportunity tocross-examine is all that isnecessary in order to allow the

use of the testimony of thewitness. There need not be anactual cross-examination, as long

as there was an opportunity to doso.)

Right to Compulsory Process


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What is the right tocompulsory process?

It is the right of the accused to

have a subpoena and/or asubpoena duces tecum issued inhis behalf in order to compel theattendance of witnesses and the

production of other evidence.

What happens if a witnessrefuses to testify whenrequired?


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The court should order thewitness to give bail or even order

his arrest, if necessary. Failure toobey a subpoena amounts tocontempt of court.

Right to Speedy, Public, andImpartial Trial

How should the trial beconducted?

The trial should be speedy,public, and impartial.


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What is the meaning ofthe right to speedy trial?

The right means that the trialshould be conducted according to

the law of criminal procedure andthe rules and regulations, freefrom vexations, capricious, andoppressive delays.

When should thearraignment and pre-trial be

held?

According to the Speedy Trial Actand Circular 38-98, arraignment


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and pre-trial if the accusedpleads not guilty should be held

within 30 days from the date thecourt acquires jurisdiction of theperson of the accused.

Within how many daysshould the trial becompleted?

In no case shall the entire periodexceed 180 days from the first

day of trial, except as otherwiseauthorized by the CourtAdministrator.


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What is the remedy of anaccused whose right to

speedy trial is violated?

The accused has the following

remedies:

1. File a motion to dismiss onthe ground of violation of his

right to speedy trial. (Forpurposes of double jeopardy,this has the same effect as an

acquittal.) This must be doneprior to trial, or else, it isdeemed a waiver of the right todismiss.


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2. File for mandamus tocompel a dismissal of the

information.3. If he is restrained of hisliberty, file for habeas corpus.

4.Ask for the trial of the case.

What is the limitation onthe right of an accused to a

speedy trial?

The limitation is that the State

should not be deprived of its dayin court. The right of theState/the prosecution to dueprocess should be respected.


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The prosecution and thecomplainant fail to attend thefirst hearing. The courtpostpones the hearing to

another date. Is there aviolation of the right tospeedy trial?

No. The right to speedy trial isviolated when there areunjustified postponements of the

trial, and a long period of time isallowed to elapse without thecase being tried for no justifiablereason.


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What is the meaning of theright to a public trial?

It means that anyone interested

in observing the manner that ajudge conducts the proceedingsin his courtroom may do so.

Why should a trial beconducted in public?

The trial should be public in orderto prevent abuses that may becommitted by the court to theprejudice of the defendant.


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Moreover, the accused is entitledto the moral support of his

friends and relatives.

Is there an exception tothe requirement of publicity?

Yes. The court may bar thepublic in certain cases, such as

when the evidence to bepresented may be offensive todecency or public morals, or in

rape cases, where the purpose ofsome persons in attending ismerely to ogle at the parties.


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Is it okay to hold the trialin the chambers of the

judge?

Yes. There is no violation of the

right to a public trial, since thepublic is not excluded fromattending the trial.

In so-called trials bypublicity, when can thepublicity be considered

prejudicial to the accused?

To warrant a finding of prejudicialpublicity, there must be


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allegations and proof that thejudges have been unduly

influenced, not simply that theymight be, by the barrage ofpublicity.

Right to Appeal, WhenAllowed

Is the right to appeal afundamental right?

No. The right to appeal is astatutory right, except in the caseof the minimum appellate

jurisdiction of the Supreme Court


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granted by the Constitution.Anyone who seeks to exercise the

right to appeal must comply withthe requirements of the rules.

Can the right to appeal bewaived?

Yes, it can be waived expressly or

impliedly.

What is the effect of theflight of the accused on hisright to appeal?


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When the accused flees after thecase has been submitted to the

court for decision, he will bedeemed to have waived his rightto appeal from the judgment

rendered against him.

RULE 116 ARRAIGNMENTAND PLEA

Where should the accusedbe arraigned?

The accused must be arraignedbefore the court where the


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complaint was filed or assignedfor trial.

How is arraignment made?

Arraignment is made:

1. in open court2. by the judge or clerk3. by furnishing the accusedwith a copy of the complaint orinformation

4.

reading it in the language ordialect known to him, and5. asking him whether hepleads guilty or not guilty.


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Can there be anarraignment without thepresence of the accused?

No. The accused must bepresent at the arraignment andmust personally enter his plea.

What is the effect of therefusal of the accused toenter a plea?

If the accused refuses to plead ormakes a conditional plea, a plea


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of not guilty shall be entered forhim.

X is charged withhomicide. He pleads guilty

but presents evidence toestablish self-defense. Whatshould the court do?

The court should withdraw theplea and enter a plea of notguilty.

When should thearraignment be held?


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The general rule is that theaccused should be arraigned

within 30 days from the date thecourt acquires jurisdiction overthe person of the accused. The

time of the pendency of a motionto quash or for a bill ofparticulars or other causes

justifying suspension of the

arraignment shall be excluded incomputing the period.

However, in the following cases,the accused should be arraignedwith a shorter period:


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1. Where the complainant isabout to depart from the

Philippines with no definitedate of return, the accusedshould be arraigned without

delay and his trial shouldcommence within 3 days fromarraignment.

2. The trial of cases under theChild Abuse Act requires thatthe trial should be commencedwithin 3 days from

arraignment.3. When the accused is underpreventive detention, his caseshall be raffled and its records


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transmitted to the judge towhom the case was raffled

within 3 days from the filing ofthe information or complaint.The accused shall be arraigned

within 10 days from the date ofthe raffle.

Can the lawyer of theaccused enter a plea for him?

No. The accused must personally

enter his plea.

What is the importance ofarraignment?


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Arraignment is the means for

bringing the accused into courtand informing him of the natureand cause of the accusation

against him. During arraignment,he is made fully aware of possibleloss of freedom or life. He isinformed why the prosecuting

arm of the State is mobilizedagainst him. It is necessary inorder to fix the identity of the

accused, to inform him of thecharge, and to give him anopportunity to plead.


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During the arraignment, isthe judge duty-bound to

point out that an informationis duplicitous?

No. The judge has no obligationto point out the duplicitousnessor any other defect in aninformation during arraignment.

The obligation to move to quasha defective information belongsto the accused, whose failure to

do so constitutes a waiver of theright to object.


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X was tried for murderwithout having been

arraigned. At the trial, Xscounsel presented witnessesand cross-examined the

prosecution witnesses. Itwas only after the case wassubmitted for decision that Xwas arraigned. X was

convicted. Can X invoke thefailure of the court to arraignhim before trial as a ground

for questioning theconviction?


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No. The failure of the court toarraign X before trial was

conducted did not prejudice therights of X since he was able topresent evidence and cross-

examine the witnesses of theprosecution. The error was curedby the subsequent arraignment.

Is the accused presumedto have been arraigned in theabsence of proof to the

contrary?

Yes. In view of the presumptionof regularity in the performance


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of official duties, it can bepresumed that a person accused

of a crime was arraigned, in theabsence of proof to the contrary.However, the presumption of

regularity is not applied when thepenalty imposed is death. Whenthe life of a person is at stake,the court cannot presume that

there was an arraignment; it hasto be sure that there was one.

Is the accused entitled toknow in advance the names

of all of the prosecutionwitnesses?


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No. The success of the

prosecution might be endangeredif this right were granted to theaccused. The witnesses might be

subjected to pressure orcoercion. The right time for theaccused to know their identities iswhen they take the witness

stand.

Can the prosecution callwitnesses that are not listedin the information?


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Yes. The prosecution may callat the trial witnesses other than

those named in the complaint orinformation.

X was charged withhomicide. He entered a plea

of guilty. He was laterallowed to testify in order to

prove the mitigatingcircumstance of incompleteself-defense. At the trial, he

presented evidence to provethat he acted in completeself-defense. The courtacquitted him. Later, X was


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again charged with physicalinjuries. X invoked double

jeopardy. Can X beprosecuted again for physicalinjuries?

Yes. There was no doublejeopardy. In order for doublejeopardy to attach, there musthave been a valid plea to the first

offense. In this case, thepresentation by X of evidence toprove complete self-defense had

the effect of vacating his plea ofguilt. When the plea of guilt wasvacated, the court should haveordered him to plead again, or at


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least should have directed that anew plea of not guilty be entered

for him. Because the court didnot do this, at the time of theacquittal, there was actually no

standing plea for X. Since therewas no valid plea, there can beno double jeopardy.

Can a person who pleadedguilty still be acquitted?

Yes. When an accused pleadsguilty, it does not necessarilyfollow that he will be convicted.

Additional evidence independent


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of the guilty plea may beconsidered by the judge to

ensure that the plea of guilt wasintelligently made. The totality ofevidence should determine

whether the accused should beconvicted or acquitted.

When can the accusedplead guilty to a lesseroffense?

At arraignment, the accused mayplead guilty to a lesser offensewhich is necessarily included inthe offense charged, provided


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that the offended party and theprosecutor give their consent.

After arraignment BUT BEFORETRIAL, the accused may still be

allowed to plead guilty to a lesseroffense, after he withdraws hisplea of not guilty. In such acase, the complaint or

information need not beamended.

When the penalty imposable forthe offense is at least 6 years and1 day or a fine exceedingP12,000, the prosecutor must


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first submit his recommendationto the City or Provincial

Prosecutor or to the Chief StateProsecutor for approval. If therecommendation is approved, the

trial prosecutor may then consentto the plea of guilty to a lesseroffense.

What should the court dowhen the accused pleadsguilty to a capital offense?

The court should:


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1. conduct a searching inquiryinto the voluntariness and full

comprehension of theconsequences of the plea.

2. require the prosecution topresent evidence to prove theguilt and the precise degree ofculpability of the accused forthe purpose of imposing the

proper penalty.3. ask the accused if he desiresto present evidence in his

behalf and allow him to do so ifhe desires.


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Does a plea of guilty meanan admission even of the

aggravating circumstances?

Yes. A plea of guilty results in

the admission of all the materialfacts in the complaint orinformation, including theaggravating circumstances.

Because of this, the court shouldonly accept a clear, definite, andunconditional plea of guilty.

When can the plea of guiltybe considered a mitigatingcircumstance?


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It is mitigating if made before the

prosecution starts to presentevidence.

What is the meaning of theduty of the judge to conduct

a searching inquiry?

In all cases, the judge mustconvince himself: (1) that theaccused is entering the plea of

guilty voluntarily and intelligently;and (2) that he is truly guilty andthat there exists a rational basis


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for a finding of guilt based on histestimony.

In addition, the judge mustinform the accused of the exact

length of imprisonment and thecertainty that he will serve it atthe national penitentiary or apenal colony. The judge must

dispel any false notion that theaccused may have that he willget off lightly because of his plea

of guilt.

Is it mandatory for theprosecution to present proof


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of aggravatingcircumstances?

Yes. It is mandatory in order toestablish the precise degree of

culpability and the imposablepenalty. Otherwise, there is animprovident plea of guilty.

Can a court validly convictan accused based on animprovident plea of guilty?

Yes. If there is adequateevidence of the guilt of theaccused independent of the


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improvident plea of guilty, thecourt may still convict the

accused. The conviction will beset aside only if the plea of guiltis the sole basis of the judgment.

What should the court dowhen the accused pleadsguilty to a non-capital

offense?

The court may receive evidence

from the parties to determine thepenalty to be imposed. Unlike ina plea of guilty to a capitaloffense, the reception of


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evidence in this case is notmandatory. It is merely

discretionary on the court.

When can the validity of aplea of guilty be attacked?

Generally, a plea of guilty cannotbe attacked if it is made

voluntarily and intelligently. Itcan only be attacked if it wasinduced by threats,

misrepresentation, or bribes.When the consensual characterof the plea is called into questionor when it is shown that the


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defendant was not fully apprisedof its consequences, the plea can

be challenged.

Can an improvident plea ofguilty be withdrawn as amatter of right?

No. The withdrawal of the plea

of guilty is not a matter of strictright to the accused but is withinthe discretion of the court. The

reason for this is that trial hasalready commenced; withdrawalof the plea will change the theoryof the case and will put all of the


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past proceedings to waste.Therefore, it may only be

withdrawn with permission of thecourt.

Moreover, there is a presumptionthat the plea was madevoluntarily. The court mustdecide whether the consent of

the accused was, in fact, vitiatedwhen he entered his plea.

X is charged withhomicide. He pleads guilty,

but tells the judge hindi kosinasadya. Is his plea valid?


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No. In order to be valid, the plea

of guilty must be unconditional.In this case, when X said hindiko sinasadya, he made a

qualified plea of guilty. This isnot a valid plea of guilty. A pleaof not guilty should be enteredinstead.

When a defendant appearswithout an attorney during

arraignment, what should thecourt do?

The court has a four-fold duty:


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1. It must inform the defendantthat he has a right to anattorney before beingarraigned;

2.After informing him, thecourt must ask the defendant if

he desires to have the aid ofan attorney;

3. If he desires and is unable toemploy an attorney, the courtmust assign an attorney de

oficio to defend him;4. If the accused desires toprocure an attorney of his own,


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the court must grant him areasonable time therefor.

What is the reason for thisfour-fold duty?

The right to be heard would be oflittle avail if it does not includethe right to be heard by counsel.

What is the effect of thefailure of the court to comply

with these duties?

It is a violation of due process.


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What is a counsel deoficio?

Counsel de oficio is counselappointed by the court to

represent and defend theaccused in case he cannot affordto employ one himself.

Who can be appointed ascounsel de oficio?

The court, considering the gravityof the offense and the difficultyof the questions that may ariseshall appoint as counsel de oficio:


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1. such members of the bar ingood standing

2. who by reason of theirexperience and ability, can

competently defend theaccused.

But, in localities where such

members of the bar are notavailable, the court may appointany person who is:

1. a resident of the province


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2. and of good repute forprobity and ability to defend

the accused.

What is the differencebetween the duty of thecourt to appoint counsel deoficio during arraignmentand during trial?

During arraignment, the courthas the affirmative duty to inform

the accused of his right tocounsel and to provide him withone in case he cannot afford it.The court must act on its own


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volition, unless the right iswaived by the accused.

On the other hand, during trial, itis the accused who must assert

his right to counsel. The courtwill not act unless the accusedinvokes his rights.

Can a non-lawyerrepresent the accused duringarraignment?

No. During arraignment, it is theobligation of the court to ensurethat the accused is represented


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by a lawyer because it is the firsttime when the accused is

informed of the nature and causeof the accusation against him.This is a task which only a lawyer

can do.

But during trial, there is no suchduty. The accused must ask for

a lawyer, or else, the right isdeemed waived. He can evendefend himself personally.

May an accused be validlyrepresented by a non-lawyerat the trial?


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If the accused knowingly

engaged the services of the non-lawyer, he is bound by the non-lawyers actions. But if he did

not know that he was beingrepresented by a non-lawyer, thejudgment is void because of themisrepresentation.

What are the duties of thepubic attorney if the accused

assigned to him isimprisoned?


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1. He shall promptly undertaketo obtain the presence of the

prisoner for trial, or cause anotice to be served on theperson having custody of the

prisoner, requiring such personto advise the prisoner of hisright to demand trial.

2. Upon receipt of that notice,the person having custody ofthe prisoner shall promptlyadvise the prisoner of the

charge and of his right todemand trial. It at anytimethereafter, the prisoner informshis custodian that he demands


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such trial, the latter shallcause notice to that effect to

be sent promptly to the publicattorney.

3. Upon receipt of such notice,the public attorney shallpromptly seek to obtain thepresence of the prisoner fortrial.

4. When the person havingcustody of the prisonerreceives from the public

attorney a properly supportedrequest for the availability ofthe prisoner for purposes of


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the trial, the prisoner shall bemade available accordingly.

What is a bill ofparticulars?

It is a more specific allegation. Adefendant in a criminal case whobelieves or feels that he is not

sufficiently informed of the crimewith which he is charged and notin a position to defend himself

properly and adequately couldmove for a bill or particulars orspecifications.


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What is the purpose of abill of particulars?

It is to allow the accused toprepare for his defense.

When can the accusedmove for a bill of particulars?

The accused must move for a billof particulars before arraignment.Otherwise, the right is deemed

waived.


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What should be containedin the motion for a bill or

particulars?

It should specify the alleged

defects of the complaint orinformation and the detailsdesired.

What is the right to modesof discovery?

It is the right of the accused tomove for the production orinspection or material evidence inthe possession of the


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prosecution. It authorizes thedefense to inspect, copy, or

photograph any evidence of theprosecution in its possession afterobtaining permission of the court.

What is the purpose of thisright?

The purpose is to preventsurprise to the accused and thesuppression or alteration of

evidence.


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Is this right availableduring preliminary

investigation?

Yes, when indispensable to

protect his constitutional right tolife, liberty, and property. (Webbv. de Leon)

What are the grounds forsuspending arraignment?

1.

If the accused appears to besuffering from an unsoundmental condition, whichrenders him unable to fully


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understand the charge againsthim and to plead intelligently

thereto. The court shouldorder his mental examinationand his confinement, if

necessary.2. If there exists a prejudicialquestion.

3. If a petition for review of theresolution of the prosecutor ispending either at the DOJ orthe Office of the President.

However, the period ofsuspension shall not exceed 60days counted from the filing ofthe petition for review.


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What is the test todetermine whether theinsanity of the accusedshould warrant the

suspension of theproceedings?

The test is whether the accused

will have a fair trial with theassistance of counsel, in spite ofhis insanity. Not every aberration

of the mind or exhibition ofmental deficiency is sufficient tojustify suspension.


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RULE 117 MOTION TOQUASH

When can the accused filea motion to quash?

At any time before entering hisplea, the accused may move toquash the complaint or

information.

What is the form requiredfor a motion to quash?

1. It must be in writing.


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2. It must be signed by theaccused or his counsel.

3. It must specify its factualand legal grounds.

Can the court dismiss thecase based on grounds that

are not alleged in the motionto quash?

As a general rule, no. The courtcannot consider any ground other

than those stated in the motionto quash. The exception is lackof jurisdiction over the offensecharged. If this is the ground for


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dismissing the case, it need notbe alleged in the motion to quash

since it goes into the verycompetence of the court to passupon the case.

What are the grounds thatthe accused may invoke toquash a complaint or

information?

1. That the facts charged donot constitute an offense;2. That the court trying thecase has no jurisdiction overthe offense charged;


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3. That the court trying thecase has no jurisdiction over

the person of the accused;4. That the officer who filed theinformation had no authority to

do so;5. That it does not conformsubstantially to the prescribedform;

6. That more than one offenseis charged except when asingle punishment for various

offenses is prescribed by law(duplicitous);7. That the criminal action orliability has been extinguished;


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8. That it contains avermentswhich, if true, would constitute

a legal excuse or justification;9. That the accused has beenpreviously convicted or

acquitted of the offensecharged, or the case againsthim was dismissed orotherwise terminated without

his express consent. (doublejeopardy)

X filed a motion to quashan information on the ground

that he was in the US whenthe crime charged was


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committed. Should themotion be granted?

The motion should be denied.The accused is already making a

defense. Matters of defense aregenerally not a ground for amotion to quash. They should bepresented at the trial.

What is meant by thestatement that a motion to

quash hypothetically admitsallegations of fact in theinformation?


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It means that the accusedargues that assuming that the

facts charged are true, theinformation should still bedismissed based on the ground

invoked by the defendant.Therefore, since the defendantassumes that the facts in theinformation are true, only these

facts should be taken intoaccount when the court resolvesthe motion to quash. Other

facts, such as matters of defense,which are not in the informationshould not be considered.Exceptions to this rule are when


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the grounds invoked to quashthe information are extinction of

criminal liability, prescription, andformer jeopardy. In these cases,additional facts are allowed.

Can the accused move toquash on the ground that hewas denied due process?

No. Denial of due process is notone of the grounds for a motion

to quash.

X filed a motion to quashon the following grounds:


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that the court lackedjurisdiction over the person

of the accused and that thecomplaint charged more thanone offense. Can the court

grant the motion on theground of lack of jurisdictionover the person of theaccused?

No. A motion to quash on theground of lack of jurisdiction over

the person of the accused mustbe based only on this ground. Ifother grounds are included, thereis a waiver, and the accused is


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deemed to have submittedhimself to the jurisdiction of the

court.

What is the effect of aninformation that was signedby an unauthorized person?

It is a VALID information signed

by a competent officer which,among other requisites, confers

jurisdiction over the person of the

accused and the subject matterof the accusation. Thus, aninfirmity in the information suchas lack of authority of the officer


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signing it cannot be cured bysilence, acquiescence, express

consent, or even amendment.

What happens if thedefendant enters his pleabefore filing a motion toquash?

By entering his plea before filingthe motion to quash, thedefendant waives FORMAL

objections to the complaint orinformation.


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But if the ground for the motionis any of the following, there is

no waiver. The ground may beraised at any stage of theproceeding:

1. failure to charge an offense2. lack of jurisdiction over theoffense

3. extinction of criminal liability4. double jeopardy

How is criminal liabilityextinguished?


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Under Article 89 of the RPC,criminal liability is extinguished

by:

1. death of the convict, and asto pecuniary penalties, liabilitytherefor is extinguished onlywhen the death of the offenderoccurs before final judgment;

2. service of sentence;3. amnesty;4. absolute pardon;5.

prescription of the crime;6. prescription of the penalty;


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7. marriage of the offendedwoman, as provided in Article

344 of the RPC.

X and Y were charged withadultery. While the case wasbeing tried, X died. Whathappens to the criminalliability of X and Y?

The criminal liability of X isextinguished. The criminal

liability of Y subsists. The deathof one of several accused will notbe a cause for dismissal of the


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criminal action as against theother accused.

What is the effect of thedeath of the offended party

on the criminal liability of theaccused?

Where the offense charged in a

criminal complaint or informationis one against the state, involvingpeace and order, the death of the

offended party before finalconviction of the defendant willnot abate the prosecution.Neither does the death of the


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offended party in private crimesabate the prosecution.

What are the means bywhich criminal liability is

partially extinguished?

1. Conditional pardon2. Commutation of sentence3. For good conduct,allowances which the culpritmay earn while he is serving

his sentence


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What are the distinctionsbetween pardon and

amnesty?

AMNES

TY

PARDON

TYPE OFOFFENSE

Politicaloffenses

Infractions of thepeace

(commoncrimes)

BENEFICIA

RY

Classes

ofpersons

An

individual

CONCURRENCE OF

Necessary

Notnecessary


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CONGRESS

ACCEPTAN

CE

Benefici

ary neednotaccept

Need for

distinctacts ofacceptanc

e on thepart ofthepardonee

JUDICIALNOTICE

Courtstake

judicial

noticebecauseit is apublic

Courts donot take

judicial

noticebecause itis aprivate act


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act of thePresident.

Therefore,it must beproved in

court.EFFECT Abolishes theoffense

(looksbackward)

Relievestheoffender

from theconsequences of

theoffense(looksforward)


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WHEN ITMAY BE

GRANTED

Beforeor after

prosecution

Only afterconviction

by finaljudgment

What is the effect ofabsolute pardon upon

criminal liability?

Absolute pardon blots out thecrime. It removes all disabilitiesresulting from the conviction,

such as the political rights of theaccused.


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What is the effect ofpardon by the offended party

upon criminal liability?

As a general rule, pardon by the

offended party does notextinguish criminal liability. Onlycivil liability is extinguished byexpress waiver of the offended

party.

However, pardon granted before

the institution of the criminalproceedings in cases of adultery,concubinage, seduction,abduction, and acts of


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lasciviousness shall extinguishcriminal liability.

What is the effect ofmarriage of the offender with

the offended party in privatecrimes?

It shall extinguish the criminal

action or remit the penaltyalready imposed. This applieseven to co-principals,

accomplices, and accessories.

However, where multiple rape iscommitted, marriage of the


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offended party with onedefendant extinguishes the

latters liability and that of hisaccessories or accomplices for asingle crime of rape cannot

extend to the other acts of rape.

If the offender in rape isthe legal husband of the

offended party, how can thehusbands criminal liability beextinguished?

The subsequent forgiveness bythe wife shall extinguish thecriminal action or the penalty.


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But the penalty shall not beabated if the marriage is void ab

initio.

Why is prescription aground for a motion toquash?

This is meant to exhort the

prosecution not to delay;otherwise, they will lose the rightto prosecute. It is also meant to

secure the best evidence that canbe obtained.


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What are the prescriptiveperiods of crimes?

OFFENSE PRESCRIPTIVEPERIOD

Punishable bydeath,reclusionperpetua, or

reclusiontemporal

20 years

Punishable by

other afflictivepenalties

10 years

Punishable byarresto mayor

5 years


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Libel or othersimilar

offenses

2 years

Oraldefamation

and slanderby deed

6 months

Light offenses 2 months

Can the accused still raiseprescription as a defenseeven after conviction? Can

the defense of prescriptionbe waived?


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The accused can still raiseprescription as a defense even

after conviction. The defensecannot be waived. This isbecause the criminal action is

totally extinguished by theexpiration of the prescriptiveperiod. The State thereby losesor waives its right to prosecute

and punish it.

What is the proper actionof the court when theaccused raises the defense ofprescription?


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The proper action for the courtis to exercise its jurisdiction and

to decide the case upon themerits, holding the action to haveprescribed and absolving the

defendant. The court should notinhibit itself because it does notlose jurisdiction over the subjectmatter or the person of the

accused by prescription.

What is the effect ofprescription of the offense onthe civil liability of theaccused?


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The extinction of the penalaction does not carry with it the

extinction of the civil action toenforce civil liability arising fromthe offense charged, unless the

extinction proceeds from adeclaration in a final judgmentthat the fact from which the civilliability might arise did not exist.

What should the court do ifthe accused moves to quash

the complaint or informationon grounds that can be curedby amendment (ex:duplicitous)?


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The court should order that the

amendment be made.

What should the court do ifthe accused moves to quashon the ground that the factscharged do not constitute anoffense?

The court should give theprosecution the opportunity to

correct the defect byamendment. If the prosecutionfails to make the amendment, orif, after it makes the amendment,


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the complaint or information stillsuffers from the same defect, the

court should grant/sustain themotion to quash.

What is the effect if amotion to quash is

sustained?

The court may order that anothercomplaint or information be filedagainst the accused for the same

offense, except if the ground forsustaining the motion to quash iseither:


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1. extinguishment of thecriminal liability of the accused,

or2. double jeopardy.

The grant of a motion to quashon these two grounds is a bar toanother prosecution for the sameoffense.

If the order is made, theaccused, if in custody, shall not

be discharged unless admitted tobail.


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If no order is made, or if no newinformation was filed within the

time specified by the court, theaccused, if in custody, shall bedischarged.

What is the remedy of theaccused if the court denieshis motion to quash?

The accused cannot appeal anorder overruling his motion to

quash. This is because an orderdenying a motion to quash isinterlocutory; it does not disposeof the case upon its merits. The


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accused should go to trial andraise it as an error on appeal

later.

What are the two kinds ofjeopardy?

1. No person shall be twice putin jeopardy for the same

offense.

2. When an act is punished bya law and an ordinance,conviction or acquittal undereither shall constitute a bar to


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another prosecution for thesame act.

What are the requisites forthe accused to raise the

defense of double jeopardy?

To raise the defense of doublejeopardy, the following requisites

must be present:

1. a first jeopardymust haveattached prior to the second;2. the first jeopardy must havebeen validly terminated;


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3. the second jeopardymust be for the same offense

or the second offenseincludes or is necessarilyincluded in the offense

charged in the firstinformation, or is an attemptor a frustrationthereof.

What are the requisites forthe first jeopardy to attach?

1.Valid complaint orinformation

2. Court of competentjurisdiction


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3.Arraignment4.Valid plea5. The defendant wasacquitted, convicted, or thecase was dismissed without his

express consent.

A crime was committed inMakati. The case was filed in

Pasay. When the prosecutionrealized that the complaintshould have been filed in

Makati, it filed the case inMakati. Can the accusedinvoke double jeopardy?


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No. The court in Pasay had nojurisdiction; therefore, the

accused was in no danger ofbeing placed in jeopardy. Thefirst jeopardy did not validly

attach.

For purposes of doublejeopardy, when is a

complaint or informationvalid?

A complaint or information isvalid if it can support a judgmentof conviction. It the complaint orinformation is not valid, it would


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violate the right of the accusedto be informed of the nature and

cause of the accusation againsthim. If he is convicted under thiscomplaint or information, the

conviction is null and void. If theconviction is null and void, therecan be no first jeopardy.

X was charged withqualified theft. X moved todismiss on the ground of

insufficiency of theinformation. The case wasdismissed. Subsequently, theprosecution filed a corrected


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information. Can X pleaddouble jeopardy?

No. The first jeopardy did notattach because the first

information was not valid.

X was charged with theft.During the trial, the

prosecution was able toprove estafa. X wasacquitted of theft. Can X be

prosecuted for estafa laterwithout placing him in doublejeopardy?


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Yes. For jeopardy to attach, thebasis is the crime charged in the

complaint or information, and notthe one proved at the trial. Inthis case, the crime charged in

the first information was theft. Xwas therefore placed in jeopardyof being convicted of theft. Sinceestafa is not an offense which is

included or necessarily includestheft, X can still be prosecutedfor estafa without placing him in

double jeopardy.

The estafa case against Xwas dismissed, but the


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dismissal contained areservation of the right to file

another action. Can anotherestafa case be filed against Xwithout placing him in double

jeopardy?

Yes. To raise the defense ofdouble jeopardy, the firs jeopardy

must have been validlyterminated. This means thatthere must have been either a

conviction or an acquittal, or anunconditional dismissal of thecase. A provisional dismissal,


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such as this one, does notvalidly terminate the first

jeopardy.

Note, however, that in the

second kind of jeopardy (one actpunished by a law and anordinance), the first jeopardy canonly be terminated either by

conviction or acquittal, and notby dismissal of the case withoutthe express consent of the

accused.

X was charged with theft.On the day of the trial, the


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prosecution could not go totrial because important

witnesses were unable toappear. Counsel for theaccused moved to dismiss the

case. The court dismissedthe case provisionally.Subsequently, X was chargedwith theft again. Can X

invoke double jeopardy?

No. The case was dismissed

upon motion of counsel for theaccused, so it was not dismissedwithout his express consent.Moreover, the dismissal was only


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provisional, which is not a validtermination of the first jeopardy.

In order to validly terminate thefirst jeopardy, the dismissal musthave been unconditional.

X was charged with slightphysical injuries. On hismotion, the case was

dismissed during the trial.Another case for assault upona person in authority was

filed against him. Can Xinvoke double jeopardy?


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No. The first jeopardy was notterminated through either

conviction, acquittal, or dismissalwithout the express consent of X.The first case was dismissed

upon motion of X himself.Therefore, he cannot invokedouble jeopardy.

X was charged with theft.During trial, the evidenceshowed that the offense

committed was actuallyestafa. What should thejudge do?


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The judge should order thesubstitution of the complaint for

theft with a new one chargingestafa. Upon filing of thesubstituted complaint, the judge

should dismiss the originalcomplaint.

If it appears at any time before

judgment that a mistake hasbeen made in charging theproper offense, the court shall

dismiss the original complaint orinformation upon the filing of anew one charging the properoffense.


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What are the requisites fora valid substitution of acomplaint or information?

1.

No judgment has beenrendered;2. The accused cannot beconvicted of the offense

charged or any other offensenecessarily included in theoffense charged;

3.

The accused will not beplaced in double jeopardy.


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X was charged withhomicide. On the first day of

trial, the prosecution failed toappear. The court dismissedthe case on the ground of

violation of the right of theaccused to speedy trial. Xwas later charged withmurder. Can X invoke double

jeopardy?

No. The first jeopardy was not

validly terminated. The judgewho dismissed the case on theground of violation of the right ofX to speedy trial committed grave


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abuse of discretion in dismissingthe case after the prosecution

failed to appear once. This is nota valid dismissal because itdeprives the prosecution of due

process. When the judge gravelyabuses his discretion indismissing a case, the dismissal isnot valid. Therefore, X cannot

invoke double jeopardy.

Distinguish betweendismissal and acquittal.

Acquittal is always based on themerits. The accused is acquitted


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because the evidence does notshow his guilt beyond reasonable

doubt. Dismissal does not decidethe case on the merits, nor doesit determine that the accused is

not guilty. Dismissals terminatethe proceedings, either becausethe court is not a court ofcompetent jurisdiction or the

evidence does not show that theoffense was committed within theterritorial jurisdiction of the court,

or the complaint or information isnot valid or sufficient in form andsubstance.


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When is a dismissal of thecase, even with the express

consent of the accused,equivalent to an acquittal,which would constitute a bar

to a second jeopardy? Whenis it not a bar to a secondjeopardy?

A dismissal upon motion of theaccused or his counsel negatesthe application of double

jeopardy because the motion ofthe accused amounts to expressconsent, EXCEPT:


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1. if the ground is insufficiencyof evidence of the prosecution

(demurrer to evidence), or2. denial of the right to speedytrial.

In these two cases, even uponmotion of the accused, thedismissal amounts to an acquittal

and would bar a secondjeopardy.

But if the accused moves todismiss on the following grounds,he can still be prosecuted for thesame offense because he is


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deemed to have waived his rightagainst a second jeopardy:

1. Lack of jurisdiction (Why?Because if you move to dismiss

on the ground of lack ofjurisdiction, it means that youcould not have been validlyconvicted by that court. You

are later estopped fromclaiming that you were indanger of conviction).

2.

Insufficiency of complaint orinformation (Same reason.You could not have beenvalidly convicted under that


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defective information, so youare estopped from claiming

that there was a firstjeopardy).

When will dismissal ortermination of the first case

not bar a second jeopardy?

The conditions when dismissal ortermination will not place theaccused in double jeopardy are:

1. The dismissal must besought by the defendant


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personally or through hiscounsel; and

2. Such dismissal must not beon the merits and must notnecessarily amount to an

acquittal.

Before the prosecutioncould finish presenting its

evidence, the accused filed ademurrer to evidence. Thecourt granted the motion and

dismissed the case on theground of insufficiency ofevidence of the prosecution.Can the accused be


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prosecuted for the sameoffense again?

Yes. There was no doublejeopardy because the court

exceeded its jurisdiction indismissing the case even beforethe prosecution could finishpresenting evidence. It denied

the prosecution of its right to dueprocess. Because of this, thedismissal is null and void and

cannot constitute a proper basisfor a claim of double jeopardy.


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The prosecutor filed aninformation against X for

homicide. Before X could bearraigned, the prosecutorwithdrew the information,

without notice to X. Theprosecutor then filed aninformation against X formurder. Can X invoke double

jeopardy?

No. X has not yet been arraigned

under the first information.Therefore, the first jeopardy didnot attach. A nolle prosequi ordismissal entered before the


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accused is placed on trial andbefore he pleads is not equivalent

to an acquittal and does not bar asubsequent prosecution for thesame offense.

If the accused fails toobject to the motion todismiss the case filed by the

prosecution, is he deemed tohave consented to thedismissal? Can he still invoke

double jeopardy?

No. Silence does not meanconsent to the dismissal. If the


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accused fails to object oracquiesces to the dismissal of the

case, he can still invoke doublejeopardy, since the dismissal wasstill without his express consent.

He is deemed to have waived hisright against double jeopardy ifhe expressly consents to thedismissal.

X was charged withmurder. The prosecution

moved to dismiss the case.Counsel for X wrote thewords No objection at thebottom of the motion to


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dismiss and signed it. Can Xinvoke double jeopardy later

on?

No. X is deemed to have

expressly consented to thedismissal of the case when hiscounsel wrote No objection atthe bottom of the motion to

dismiss. Since the case wasdismissed with his expressconsent, X cannot invoke double

jeopardy.

X was charged withmurder. After the


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prosecution presented itsevidence, X filed a motion to

dismiss on the ground thatthe prosecution failed toprove that the crime was

committed within theterritorial jurisdiction of thecourt. The court dismissedthe case. The prosecution

appealed. Can X invokedouble jeopardy?

No. X cannot invoke doublejeopardy. The dismissal wasupon his own motion, so it waswith his express consent. Since


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the dismissal was with hisexpress consent, he is deemed to

have waived his right againstdouble jeopardy. The only timewhen a dismissal, even upon

motion of the accuse, will bar asecond jeopardy is if it is basedeither on insufficiency ofevidence or denial of the right of

the accused to speedy trial.These are not the groundsinvoked by X, so he cannot claim

double jeopardy.

X was charged withhomicide. X moved to


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alleged that the court had nojurisdiction.

X was charged withhomicide. The court,

believing that it had nojurisdiction, motu propiodismissed the case. Theprosecution appealed,

claiming that the court, infact, had jurisdiction. Can Xinvoke double jeopardy?

Yes. When the trial court hasjurisdiction but mistakenlydismisses the complaint or


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information on the ground oflack of it, and the dismissal was

not at the request of theaccused, the dismissal is notappealable because it will place

the accused in double jeopardy.

X was charged with rape.X moved to dismiss on the

ground that the complaintwas insufficient because itdid not allege lewd designs.

The court dismissed the case.Later, another case for rapewas filed against X. Can Xinvoke double jeopardy?


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No. Like the previous problem, X

is estopped from claiming that hecould have been convicted underthe first complaint. He himself

moved to dismiss on the groundthat the complaint wasinsufficient. He cannot changehis position and now claim that

he was in danger of beingconvicted under that complaint.

X was charged withmurder, along with three

other people. X wasdischarged as a state


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witness. Can X beprosecuted again for the

same offense?

It depends. As a general rule, an

order discharging an accused asa state witness amounts to anacquittal, and he is barred frombeing prosecuted again for the

same offense. However, if hefails or refuses to testify againsthis co-accused in accordance

with his sworn statementconstituting the basis for thedischarge, he can be prosecutedagain.


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Can a person accused ofestafa be charged withviolation of BP22 withoutplacing him in double

jeopardy?

Yes. Where two different lawsdefine two crimes, prior jeopardy

as to one of the is no obstacle toa prosecution of the otheralthough both offenses arise from

the same facts, if each crimeinvolves some important actwhich is not an essential elementof the other. Other examples:


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Illegal recruitment and estafa,illegal fishing and illegal

possession of explosives, alarmand scandal and illegal dischargeof firearms, brigandage and

illegal possession of firearms,consented abduction andqualified seduction.

But take note of the following:

Possession of a shotgun and a

revolver by the same person atthe same time is only one act ofpossession, so there is only oneviolation of the law.


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Conviction for smoking opium

bars prosecution for illegalpossession of the pipe. Hecannot smoke the opium without

the pipe.

Theft of 13 cows at the sametime and in the same place is

only one act of theft.

Conviction for less serious

physical injuries bars prosecutionfor assault upon a person inauthority.


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Reckless imprudence resulting indamage to property and serious

or less serious physical injuries isonly one offense. If it is slightphysical injuries, it can be broken

down into two offenses, since alight offense cannot becomplexed.

X installed a jumper cablewhich allowed him to reducehis electricity bill. He was

prosecuted for violating amunicipal ordinance againstunauthorized installation ofthe device. He was


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convicted. Can he still beprosecuted for theft?

No. Under the second type ofjeopardy, when an act is

punished by a law and anordinance, conviction or acquittalunder once will bar a prosecutionunder the other. (But remember,

that there has to be eitherconviction or acquittal. Dismissalwithout the express consent of

the accused is not sufficient).

What are the exceptions todouble jeopardy? When can


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the accused be charged witha second offense which

necessarily includes theoffense charged in the formercomplaint or information?

The conviction of the accusedshall not be a bar to anotherprosecution for an offense which

necessarily includes the offensecharged in the former complaintor information under any of the

following circumstances:

1. the graver offense developeddue to supervening facts


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arising from the same act oromission constituting the

former charge;2. the facts constituting thegraver charge became

known or were discoveredonly after a pleawas enteredin the former complaint orinformation;

3. the plea of guilty to thelesser offense was madewithout the consent of the

prosecutor and the offendedparty except if the offendedparty fails to appear at thearraignment.


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What is the doctrine ofsupervening fact?

If, after the first prosecution, a

new fact supervenes on whichthe defendant may be held liable,altering the character of thecrime and giving rise to a new

and distinct offense, the accusedcannot be said to be in second

jeopardy if indicted for the new

offense.

X was charged withfrustrated homicide. There


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was nothing to indicatedthat the victim was going to

die. X was arraigned. Beforetrial, the victim dies. Can Xbe charged with homicide?

It depends. If the death of thevictim can be traced to the actsof X, and the victim did not

contribute to his death with hisnegligence, X can be chargedwith homicide. This is a

supervening fact. But if the actof X was not the proximate causeof death, he cannot be chargedwith homicide.


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X was charged withreckless imprudenceresulting in homicide andwas acquitted. The heirs of

the victim appealed the civilaspect of the judgment. Xclaims that the appeal willplace him in double jeopardy.

Is X correct?

No. There was no second

jeopardy. What was elevated onappeal was the civilaspect of thecase, not the criminal aspect.The extinction of criminal liability


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whether by prescription or bythe bar of double jeopardy does

not carry with it the extinction ofcivil liability arising from theoffense charged.

X was charged withmurder and was acquitted.Can the prosecution appeal

the acquittal?

No. The prosecution cannot

appeal the acquittal, since itwould place the accused indouble jeopardy.


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Even if the decision of acquittalwas erroneous, the prosecution

still cannot appeal the decision.It would still place the accused indouble jeopardy.

When can the prosecutionappeal despite the dismissalor termination of the case?

As a general rule, the dismissal ortermination of the case after

arraignment and plea of thedefendant to a valid informationshall be a bar to anotherprosecution for the same offense,


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or of the merits of the case;and

3. the question to be passedupon by the appellate court ispurely legal so that should the

dismissal be found incorrect,the case would have to beremanded to the court of originfor further proceedings to

determine the guilt orinnocence of the accused.

What is the effect of theappeal by the accused?


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If the accused appeals, hewaives his right against double

jeopardy. The case is thrownwide open for review and apenalty higher than that of the

original conviction could beimposed upon him.

What should the accuseddo if the court denies themotion to quash on theground of double jeopardy?

He should plead not guilty andreiterate his defense of former

jeopardy. In case of conviction,


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he should appeal from thejudgment, on the ground of

double jeopardy.

When can a case beprovisionally dismissed?

A case can only be dismissedprovisionally if the accused

expressly consents, and withnotice to the offended party.Provisional dismissal does not

place the accused in doublejeopardy. But, ff the accusedobjects to the provisionaldismissal, a revival of the case


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would place him in doublejeopardy.

When does the provisionaldismissal become final?

The provisional dismissal ofoffenses punishable byimprisonment exceeding 6 years

or a fine of any amount shallbecome permanent after 1 yearwithout the case having been

revived.

For offenses punishable byimprisonment of more than 6


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years, the provisional dismissalshall become permanent after 2

years without the case havingbeen revived.

After the provisional dismissalbecomes final, the accusedcannot be prosecuted anymore.

RULE 118 PRE-TRIAL

When is pre-trial required?

Pre-trial is mandatory in allcriminal cases cognizable by the


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Sandiganbayan, RTC, MTCs andMunicipal Circuit Trial Courts.

When should it beconducted?

After arraignment and within 30days from the date the courtacquires jurisdiction over theperson of the accused.

What happens during pre-trial?

The following things areconsidered:


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1. plea bargaining2. stipulation of facts3. marking for identification ofevidence of the parties

4. waiver of objections toadmissibility of evidence5. modification of the order oftrial if the accused admits thecharge but interposes a lawful

defense6. other matters that willpromote a fair and expeditious

trial of the criminal and civilaspects of the case


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What is the form requiredfor the pre-trial agreement?

Any agreement or admissionentered into during the pre-trial

conference should be:

1. in writing2. signed by the accused3. signed by counsel

Otherwise, it cannot be used

against the accused.

What is a pre-trial order?


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It is an order issued by thecourt after the pre-trial

conference containing:

1. a recital of the actions taken,2.

the facts stipulated, and3. the evidence marked.

The pre-trial order binds the

parties, limits the trial to mattersnot disposed of, and controls thecourse of the action during the

trial, unless modified by the courtto prevent manifest injustice.


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What is plea bargaining?Why is it encouraged?

It is the disposition of criminalcharges by agreement between

the prosecution and the accused.It is encouraged because it leadsto prompt and final disposition ofmost criminal cases. It shortens

the time between charge anddisposition and enhanceswhatever may be the

rehabilitative prospects of theguilty when they are ultimatelyimprisoned.


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When is plea bargainingnot allowed?

It is not allowed under theDangerous Drugs Act where the

imposable penalty is reclusionperpetua to death.

RULE 119 TRIAL

How much time does theaccused have to prepare for

trial?

After he enters his plea of notguilty, the accused shall have at


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least 15 days to prepare fortrial. The trial shall commence

within 30 days from receipt of thepre-trial order.

How long should the triallast?

The entire trial period should not

exceed 180 days from the firstday of trial, except if authorizedby the Supreme Court.

What are the duties of thepresiding judge under thecontinuous trial system?


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The judge should:

1. adhere faithfully to thesession hours prescribed by

laws;2. maintain full control of theproceedings;

3. efficiently allocate and usetime and court resources toavoid court delays.

In which cases is the timelimitation not applicable?


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1. Criminal cases covered bythe Rule on Summary

Procedure or those where thepenalty does not exceed 6months imprisonment or a fine

of P1,000: governed by theRules on Summary Procedure

2. When the offended party isabout to depart with nodefinite date or return: trialshall commence within 3 days

from the date of arraignment,and cannot be postponedexcept on grounds of illness ofthe accused or other grounds


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over which the accused hasno control

3. Child abuse cases: trial shallcommence within 3 days fromarraignment and cannot be

postponed except on groundsof illness of the accused orother grounds beyond hiscontrol

4.Violations of DangerousDrugs Law: trial shall befinished within 3 months from

filing of the information.5. Kidnapping, Robbery in aband, Robbery against aBanking or Financial Institution,


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Violation of the CarnappingAct, and other heinous crimes:

trial shall be finished within 60days from the first day of trial.

What are the periods thatshould be excluded in

computing the time withinwhich trial must commence?

1.Any period of delay resultingfrom other proceedings

concerning the accused2.Any period resulting from theabsence or unavailability ofan essential witness.


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3.Any period of delayresulting from mental

incompetence or physicalinability of the accused tostand trial.

4.

If the information isdismissed upon motion of theprosecution and thereafter acharge is filed against the

accused for the same offense,any period of delay from thedate the charge was dismissed

to the date the time limitationwould commence to run as tothe subsequent charge, had


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there been no previouscharge. (say what?)

5.A reasonable period of delaywhen the accused is joinedfor trial with a co-accused

over whom the court hasnot acquired jurisdiction, oras to whom the time for trialhas not run and not motion

for separate trial has beengranted.

6.Any period of delay from acontinuance granted by anycourt motu propio, or onmotion of either the accused orhis counsel, or the prosecution,


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if the court granted it on thebasis of finding that the ends

of justice served by taking suchaction outweigh the bestinterest of the public and the

accused in a speedy trial.

What are examples ofotherproceedings concerning

the accused which should beexcluded from thecomputation of time?

1. Delay resulting fr

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