Criminal Procedure PDF

Criminal Procedure By: Atty. Edwin C. Dumalogdog Q. What is criminal procedure? A.Criminal procedure is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense and for their punishment, in case of conviction. Q. What is criminal procedure concerned with? A. Criminal procedure is concerned with the procedural steps through which the criminal case passes, commencing with the initial investigation of a crime and concluding with the unconditional release of the offender. It is a generic term used to describe the network of laws and rules which govern the procedural administration of criminal justice. Criminal Jurisdiction – power of the State to try and punish a person for a violation of its penal laws. REQUISITES FOR A VALID EXERCISE OF CRIMINAL JURISDICTION: 1. The offense, by virtue of the imposable penalty OR its nature, is one which the court is by law authorized to take cognizance of, (jurisdiction over the SUBJECT MATTER). 2. The offense must have been committed within its territorial jurisdiction, (jurisdiction over the TERRITORY). 3. The person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court, (jurisdiction over the PERSON OF THE ACCUSED). JURISDICTION OVER THE JURISDICTION OVER THE SUBJECT MATTER PERSON OF THE ACCUSED Derived from the law. It can May be acquired by consent of never be acquired solely by the accused or by waiver of consent of the accused. objections Objection that the court has no If he fails to make his objection jurisdiction of the subject in time, he will be deemed to matter may be made at any have waived it. stage of the proceeding, and the right to make such objection is never waived. DETERMINATION OF CRIMINAL JURISDICTION 1. Determined by the allegations in the complaint or information not by the results of proof or by the trial court’s appreciation of the evidence presented. 2. Determined by the law in force at the time of the institution of the criminal action. ONCE VESTED, IT CANNOT BE WITHDRAWN BY: 1. subsequent valid amendment of the information; or 2. a subsequent statutory amendment of the rules of jurisdiction, UNLESS the amendatory law provides otherwise. Q. Distinguish between criminal law and criminal procedure. A. Criminal law is substantive; it defines crimes, treats of their nature, and provides for their punishment. Criminal procedure, on the other hand, is remedial or procedural; it provides for the method by which a person accused of a crime is arrested, tried and punished. Criminal law declares what acts are punishable, while criminal procedure provides how the act is to be punished. Q. How are the rules of criminal procedure construed? A. The rules of criminal procedure shall be liberally construed in favor of the accused and strictly against the state to even the odds in favor of the accused against whom the entire machinery of the state is mobilized. Q. What is jurisdiction? A. Jurisdiction (in general) is the power or authority given by the law to a court or tribunal to hear and determine certain controversies. It is the power of courts to hear and determine a controversy involving rights which are demandable and enforceable. Q. Distinguish jurisdiction from venue. A. Venue is defined as the particular country or geographical area in which a court with jurisdiction may hear and determine a case. It means the place of trial. On the other hand, jurisdiction is the power of the court to decide the case on the merits. Venue is thus procedural, while jurisdiction is substantive. In civil cases, venue may be waived or stipulated by the parties. On the other hand, jurisdiction is granted by law or the Constitution and cannot be waived or stipulated. Jurisdiction Katarungang Barangay of Courts Cases not subject to Amicable Settlement: Where one of the party is the government or subdivision or instrumentality thereof; 1. Where one party is a public officer or employee, and the dispute relates to the performance of his official function; 2. Offenses punishable by imprisonment exceeding one year of a fine exceeding P5000; 3. Offenses where there is no private offended party; 4. Those involving parties who reside in Barangay of different cities or municipalities unless their barangay are adjoining; 5. Those involving real properties located in different cities or municipalities; 6. The accused is under detention; Municipal Trial Court A. Summary rules: 1. Traffic Violations 2. Violations of Rental Laws 3. Violations of City and Municipal ordinance 4. All other violations where the penalty does not exceed 6 months imprisonment and/or a 1,000 fine. B. Exclusive Original jurisdiction: 1. All violations of the city and municipal ordinances committed within their respective jurisdictions. 2. All offenses punishable with imprisonment not exceeding 6 years regardless of the amount of the fine or civil liability or the damage to property through criminal negligence; 3. All offenses punishable by not more than 6 years imprisonment which are committed by government officials and employees in relation to their office. The salary grade of the accused should be below “27”. Regional Trial Court A. Exclusive Original Jurisdiction over: 1. All criminal cases that are not within the exclusive jurisdiction of any court, tribunal or body, involving offenses punishable by imprisonment exceeding 6 years. B. Exclusive Appellate Jurisdiction – 1. All cases decided by MTC’s in RTCs’ respective jurisdiction. Sandiganbayan A. Exclusive original jurisdiction 1. All offenses committed by government officers and employees in relation to their office, where one or more accused occupy position whose salary grade is “27” or higher. B. Exclusive Appellate jurisdiction 1. Final judgements, resolution or order of RTCs in cases involving government officers and employees in relation to their office, where all of the accused occupy positions whose salary grade is lower than grade “27” Court of Appeals 1. Ordinary appeals from RTCs, except in cases exclusively appealable to the Supreme Court 2. Petition for review from RTCs in cases appealed thereto from lower court. 2. Criminal cases in which the penalty imposed is death, reclusion perpetua and life imprisonment on questions of law and facts. Supreme Court 1. Petition for review on certiorari from the Court of Appeals, Sandiganbayan and RTCs on pure questions of law only; Q. Which law determines the jurisdiction of the court – the law in force at the time of the commission of the offense or the one in force as of the time when the action is filed? A. Jurisdiction is determined by the law as of the time when the action is filed, not when the offense was committed. The exception to this rule is where jurisdiction is dependent on the nature of the position of the accused at the time of the commission of the offense. In this case, jurisdiction is determined by the law in force at the time of the commission of the offense. Q. What is the meaning of the term “regular courts”? A. Regular courts refer to civil courts as opposed to military courts or courts martial. Military courts have no jurisdiction over civilians. Q. Which court has jurisdiction over a complex crime? A. Jurisdiction over the whole complex crime is lodged with the trial court having jurisdiction to impose the maximum and more serious penalty on an offense forming part of the complex crime. Q. What is territorial jurisdiction? A.The requirement of territorial jurisdiction means that a criminal action should be filed in the place where the crime was committed, except in those cases provided by Article 2 of the Revised Penal Code. Q. How is jurisdiction over the person of the accused acquired? A. Jurisdiction over the person of the accused is acquired upon his arrest or upon his voluntary appearance or submission to the court. Q. Can jurisdiction over the person of the accused be waived? A.Yes, unlike jurisdiction over the offense which is conferred by law or the Constitution, jurisdiction over the person of the accused maybe waived. For example, any objection to the procedure leading to the arrest must be opportunely raised before the accused enters his plea, or it is deemed waived. RULE 110 PROSECUTION OF OFFENSES Section 1. Institution of criminal actions. For offenses where a preliminary investigation is required - by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. Preliminary investigation is REQUIRED for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1day without regard to fine (Rule 112, Sec. 1 Par.2). For all other offenses - by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor - DOES NOT APPLY to offenses which are subject to summary procedure. Effect of institution of the criminal action: - It interrupts the running of the period of prescription of the offense charged unless otherwise provided by special laws. Remedies of the offended party if the prosecutor refuses to file an information: 1. file an action for mandamus, in case of grave abuse of discretion; 2. lodge a new complaint before the court having jurisdiction over the offense; 3. take up the matter with the Secretary of Justice in accordance with the Rev. Administrative Code; 4. institute an administrative charges against the erring prosecutor; and 5. file criminal action against the prosecutor with the corresponding civil action for damages. May Injunction Issue to Restrain Criminal Prosecution? GENERAL RULE: Criminal prosecutions may NOT be restrained or stayed by injunction, preliminary or final. The reason being, public interest requires that criminal acts be immediately investigated and prosecuted for the protection of the society (Domingo vs. Sandiganbayan, 322 SCRA 655). EXCEPTIONS: 1. To afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; 3. When there is a prejudicial question which is subjudice; 4. When the acts of the officer are without or in excess of authority; 5. When the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent; 7. When the court had no jurisdiction over the offense; 8. When it is a case of persecution rather than prosecution; 9. When the charges are manifestly false and motivated by lust for vengeance; and 10.When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. Q. What is the effect of the institution of the criminal action on the period of prescription of the offense? A. The institution of the criminal action shall interrupt the running of the period of prescription of the offense unless otherwise provided in special laws. The rule does not apply to violations of municipal ordinances and special laws. The prescriptive periods for violations of special laws are interrupted only by the institution of judicial proceedings for their investigation and punishment, while violations of municipal ordinances prescribe after two months. Q. Distinguish “institution” from “commencement” of an action. A. For offenses which require a preliminary investigation, the criminal action is instituted by filing the complaint for preliminary investigation. The criminal action is commenced when the complaint or information is filed in court. Q. Can the offended party go directly to court to file a criminal action? A. No. Before a complaint is filed in court, there should have been a confrontation between the parties before the Lupon chairman. The Lupon secretary must certify that no conciliation or settlement was reached, attested to by the Lupon chairman. The complaint may also be filed if the settlement is repudiated by the parties. Q. Are there exceptions when the parties may go directly to court? A. 1.Where the accused is under detention. 2.Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings. 3.Where actions are coupled with provisional remedies. 4.Where the action may be barred by the statute of limitations. Section 2. Form of the complaint or information. FORM: 1. In writing; 2. In the name of the People of the Philippines; and 3. Against all persons who appear to be responsible for the offense involved. Section 3. Complaint defined. A Complaint is: 1. a sworn written statement; 2. charging a person with an offense; 3. subscribed by the offended party, any peace officer or other public officer charged with the enforcement of the law violated Q. What is the form required for the complaint or information? A. The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved. Q. Why should a complaint or information be in the name of the People of the Philippines? A. Criminal actions must be commenced in the name of the People because just as a crime is an outrage against the peace and security of the people at large, so must its vindication be in the name of the People. However, it the action is instituted in the name of the offended party or of a particular city, the defect is merely of form and may be cured at any state of the trial. WHO CAN FILE A COMPLAINT 1. Offended party 2. Any peace officer 3. Other public officer charged with the enforcement of the law violated ex. Internal Revenue Officer for violation of the NIRC, custom agents with respect to violations of the Tariff and Customs Code Section 4. Information defined. An Information is: 1. an accusation in writing; 2. charging a person with an offense; 3. subscribed by the prosecutor and filed with the court. REQUISITES OF AN INFORMATION 1. it must be in writing; 2. it must charge a person with an offense; 3. it must be subscribed by the fiscal; and 4. it must be filed in court. Complaint Information Subscribed by the Subscribed by the fiscal offended party, any peace (indispensable officer or other officer requirement) charged with the enforcement of the law violated it may be filed either in it is filed with the court court or in the prosecutor’s office must be made under oath need not be under oath Prosecution in the RTC are always commenced by information, EXCEPT: 1. in certain crimes against chastity (concubinage, adultery, seduction, abduction, acts of lasciviousness); and 2. defamations imputing any of the aforesaid offenses wherein a sworn written complaint is required in accordance with section 5 of this Rule. Section 5. Who must prosecute criminal actions. FULL DISCRETION AND CONTROL OF THE PROSECUTOR All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. A PRIVATE PROSECUTOR may be authorized to prosecute a criminal action subject to the following conditions: 1. the public prosecutor has a HEAVY WORK SCHEDULE, or there is no public prosecutor assigned in the province or city; 2. the private prosecutor is authorized IN WRITING by the Regional State Prosecutor (RSP), Provincial or City Prosecutor; 3. the authority of the private prosecutor must be APPROVED BY THE COURT; 4. the private prosecutor shall continue to prosecute the case until the end of the trial unless the authority is withdrawn or otherwise revoked by the RSP, Provincial or City Prosecutor; and 5. In case of the withdrawal or revocation of the authority of the private prosecutor, the same must be approved by court. 6. (Memo Circ. No. 25, April 26, 2002, Regarding Amendment to Sec. 5, Rule 110) In appeals before the CA and the SC, it is only the SOLICITOR GENERAL that is authorized to bring and defend actions in behalf of the People of the Philippines (People vs. Nano, 205 SCRA 155). In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the SC, the Office of the Ombudsman, through its Special Prosecutor shall represent the People of the Philippines, EXCEPT in cases filed pursuant to E.O. Nos. 1, 2, 14 and 14-A, issued in 1986 (Sec. 4, RA 8249). PROSECUTION OF CRIMES AGAINST CHASTITY WHO MAY PROSECUTE 1. Concubinage and adultery – only by the offended spouse who should have the status, capacity, and legal representation at the time of filing of the complaint, regardless of age; 2. Seduction, Abduction and Acts of Lasciviousness – prosecuted exclusively and successively by the following persons in this order: a) by the offended woman b) by the parents, grandparents or legal/judicial guardians in that successive order c) by the State in the exercise of the right of parens patriae, when the offended party dies or becomes incapacitated before she could file the complaint and she has no known parents, grandparents or guardian. 3. A defamation imputing to a person any of the foregoing crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness can be prosecuted only by the party or parties defamed (Article 360, last par., Revised Penal Code). * If the offended party is of legal age AND does not suffer from physical or mental disability, she alone can file the complaint to the exclusion of all others. WHO CAN GIVE PARDON 1. Concubinage and adultery - only the offended spouse, not otherwise incapacitated, can validly extend the pardon or consent contemplated therein. 2. Seduction, abduction, and acts of lasciviousness – a) the offended minor, if with sufficient discretion, can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead; b) the parents, grandparents or guardian of the offended minor, in that order, CANNOT extend a valid pardon in said crimes WITHOUT the conformity of the offended party, even if the latter is a minor; c) if the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon. Q. Who is the “offended party”? A. The offended party is the person actually injured or whose feeling is offended. He is the one to whom the offender is also civilly liable under Article 100 of the RPC. The offended party who intervenes in a criminal action is the person who is entitled to civil indemnity in a civil action arising out of the criminal act for which the accused is charged. Q. If the offended party dies before he is able to file a complaint, can his heirs file it in his behalf? A. No. The right to file a criminal action is personal and abates upon the death of the offended party. It is not transmissible to the heirs. Q. Can the father file a complaint on behalf of his daughter for concubinage? A. No. The rule allowing the parents, grandparents, and guardians to file a complaint on behalf of the minor applies only to the offenses of seduction, abduction, and acts of lasciviousness. A complaint for adultery or concubinage may be filed only by the offended spouse. Q. If the offended party in abduction, seduction, and acts of lasciviousness is of age, can her parents file the complaint for her? A. No. If the offended party is already of age, she has the exclusive right to file the complaint unless she becomes incapacitated. The parents, grandparents, and guardian only have exclusive, successive authority to file the case if the offended party is still a minor. Q. If the offended party dies during the pendency of the case, is the criminal liability of the accused extinguished? A.No. Q. X filed a sworn complaint for acts of lasciviousness before the prosecutor. Before the prosecutor could file the case in court, X died. Can the prosecutor still file the information in court? A. Yes. The desire of X to file the case is evident by her filing of her sworn complaint with the prosecutor. Q. An information for robbery with rape was filed against X. X moved to dismiss the information on the ground that there was no complaint filed by the offended party. Should the case be dismissed? A. No. In robbery with rape, the complaint of the offended party is not necessary since the offense of robbery is not a private offense. The prosecution can be commenced without the complaint of the offended party. The pardon refers to pardon BEFORE filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does NOT prohibit the continuance of the prosecution of the offense EXCEPT in case of marriage between the offender and the offended party. PARDON vs. CONSENT CONSENT refers to future acts, while PARDON refers to past acts of adultery. The importance of this distinction is that consent, in order to absolve the accused from liability, is sufficient even if granted only to the offending spouse, whereas pardon must be extended to both offenders The SUBSEQUENT MARRIAGE between the offended party and the accused extinguishes the criminal liability of the latter, together with that of the co-principals, accomplices and accessories. EXCEPT: a) where the marriage was invalid or contracted in bad faith in order to escape criminal liability, b) in “private libel” c) in multiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concerned.  The ACQUITTAL OR DEATH of one of the accused in the crime of adultery does not bar the prosecution of the other accused (People vs. Topiño, et al., 35 Phil. 901). HOWEVER, the death of the offended spouse before the filing of the complaint for adultery bars further prosecution, BUT if the offended spouse died after the filing of the corresponding complaint, his death will NOT prevent the proceeding from continuing to its ultimate conclusion.  DESISTANCE of complainant does not bar criminal prosecution but it operates as waiver of the right to pursue civil indemnity. Section 6. Sufficiency of complaint or information. CONTENTS OF A VALID COMPLAINT OR INFORMATION 1. Name of the accused, including any appellation or nickname *An error in the name of the accused is not reversible as long as his identity is sufficiently established and this defect is curable at any stage of the proceedings as the insertion of the real name of the accused is merely a matter of form. 2. The designation of the offense 3. The acts or omissions complained of as constituting the offense 4. The name of the offended party 5. The approximate time of the commission of the offense 6. The place wherein the offense was committed PURPOSE OF THE RULE 1. To inform the accused of the nature and cause of accusation against him. 2. To notify the defendant of the criminal acts imputed to him so that he can duly prepare his defense. Substantial defect in the information cannot be cured by evidence that would jeopardize the accused’s right to be informed of the true nature of the offense he is being charged with Section 7. Name of the accused. PURPOSE: The manifest intent of the provision is to MAKE A SPECIFIC IDENTIFICATION OF THE PERSON to whom the commission of an offense is being imputed. Section 8. Designation of the offense. The information or complaint must state or designate the following whenever possible: 1. The designation of the offense given by the statute. 2. The statement of the acts or omissions constituting the offense, in ordinary, concise and particular words. 3. The SPECIFIC QUALIFYING AND AGGRAVATING circumstances must be stated in ordinary and concise language. Q. In what case can an accused NOT be convicted of a crime different from that designated in the complaint or information even if the recitals allege the commission of the crime? A. If it involves: 1. a change of the theory of the trial 2. requires of the defendant a different defense 3. surprises the accused in any way Q. X was accused of illegal possession of firearms, but the information did not allege that X did not have any license to possess the firearm. Is the information valid? A. No. The absence of the license is an essential element of the offense. Therefore, it should be alleged in the complaint or information. Q. X was charged with illegal possession of opium. X contends that the information was invalid for failure to allege that he did not have a prescription from a physician. Is X correct? A. No. The absence of the prescription is not an essential element of the offense and is only a matter of defense. It need not be alleged in the information. The QUALIFYING AND AGGRAVATING CIRCUMSTANCES cannot be appreciated even if proved UNLESS alleged in the information. In case of allegation of aggravating circumstance of HABITUAL DELINQUENCY, it should not be generally averred. The information must specify the requisite data regarding: 1. the commission of the crimes; 2. the last conviction or release; 3. the other previous conviction or release of the accused. ALLEGATIONS PREVAIL OVER DESIGNATION OF THE OFFENSE IN THE INFORMATION It is not the designation of the offense in the complaint or information that is controlling (People vs. Samillano, 56 SCRA 573); the facts alleged therein and not its title determine the nature of the crime (People vs. Magdowa, 73 Phil. 512). The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence (Buhat vs. Court of Appeals, 265 SCRA 701). Limitation on the rule that an accused may be convicted of a crime which is more serious than that named in the title so long as the facts alleged the more serious offense: An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other involves: 1. a change in the theory of the trial; 2. requires of the defendant a different defense; or 3. surprises the accused in any way (U.S. vs. Panlilio, 28 Phil. 603) Section 9. Cause of the accusation. PURPOSE: 1. to enable the court to pronounce proper judgment; 2. to furnish the accused with such a description of the charge as to enable him to make a defense; 3. as a protection against further prosecution for the same cause. RULE ON NEGATIVE AVERMENTS GENERAL RULE: Where the statute penalizes generally the acts therein defined and is intended to apply to all persons indiscriminately, the information is sufficient even if does not allege that the accused falls within the excepted situation, for then the complete definition of the offense is entirely separable from the exceptions and can be made without reference to the latter. In this case, the exception is a matter of defense which the accused has to prove. EXCEPTION: Where the statute alleged to have been violated applies only to a specific class of persons and to special conditions, the information must allege facts establishing that the accused falls within the specific class affected and not those affected from the coverage of law. Where negative averment is an essential element of the crime, it must be proved. Section 10. Place of commission of the offense PURPOSE: To show territorial jurisdiction. Section 11. Date of commission of the offense GENERAL RULE: It is NOT required that the complaint or information state with particularity the PLACE where the crime was committed and the DATE of the commission of the crime. EXCEPTION: If the PLACE/DATE of the commission of the offense constitutes an essential element of the offense. Q. What are the offenses in which the particular place where the offense was committed is essential? A. 1.Violation of domicile 2.Penalty on the keeper, watchman, visitor of opium den 3.Trespass to dwelling 4.Violation of election law (prohibiting the carrying of a deadly weapon within a 30-meter radius of polling places) 5. Interruption of religious worship 6. Robbery in an inhabited place 7. Other form of trespass Q. What are the offenses in which the time of the commission of the offense is essential? 1.Infanticide 2.Violation of Sunday Statutes (Election Law) 3.Abortion 4. Physical injuries (Art. 263, 264, 265 and 266 of the RPC) Q.Where should a criminal action be instituted? A. In the court of the municipality or territory where the 9ih offense was committed or where any of its essential ingredients occurred(Exception: Sandiganbayan cases). B. If committed in a train, aircraft, or other public or private vehicle: in the court of any municipality or territory where the vehicle passed during its trip, including the place of departure or arrival. C. If committed on board a vessel in the course of its voyage: in the court of the first port of entry or of any municipality or territory where the vessel passed during the voyage, subject to the generally accepted principles of international law. D.Crimes committed outside the Phil but punishable under Article 2 of the RPC: any court where the action is first filed. Section 12. Name of the offended party GENERAL RULE: The offended party must be designated by name, nickname, any other appellation or by fictitious name. EXCEPTION: In CRIMES AGAINST PROPERTY, the description of the property must supplement the allegation that the owner is unknown. Section 13. Duplicity of offense. There is duplicity when the complaint or information charges 2 or more DISTINCT or DIFFERENT offenses. GENERAL RULE: A complaint or information must charge only one offense. EXCEPTIONS: Complex crimes Special Complex crimes Continuous crimes or delicto continuado Crimes of which another offense is an ingredient. *Should there be duplicity of offense in the information, the accused must move for the quashal of the same BEFORE arraignment, otherwise, he is deemed to have waived the objection and maybe found guilty of as many offenses as those charged and proved during the trial. Q. In what case is the name of the offended party dispensable? A. In offenses against property, the name of the offended party may be dispensed with as long as the object taken or destroyed is particularly described to property identify the offense Q. What is a change of venue? When it is allowed? A.The Supreme Court has the power to order the change of venue or place of trial to avoid miscarriage of justice. The transfer to place where the prosecution witnesses' can fell free to reveal what they know are justified. Notwithstanding, a change of place of trial in criminal cases should be not be granted for whimsical or flimsy reason. Q What is the effect of the failure of the accused to object to a duplicitous information? A.If the accused fails to object before arraignment, the right is deemed waived, and he may be convicted of as many offenses as there are charged. Q. X fired his gun once, but the bullet killed two persons. He was charged with two counts of homicide in one information. Can he be convicted under that information? A.Yes. It falls under the exception to the rule. This is a compound crime in which one act results in two or more grave or less grave felonies. The law provides only one penalty for the two offenses. Q. X was charged with both robbery and estafa in one information. Can he be convicted of both offenses? A. It depends. If he objects to the duplicitous information before arraignment, he cannot be convicted under the information. But if he fails to object before arraignment, he can be convicted of as many offenses as there are in the information. Q. What is the PRINCIPLE OF ABSORPTION? A. In cases of rebellion, other crimes committed in the course of the crime are deemed absorbed in the crime of rebellion either as a means necessary for its commission or as an unintended effect of rebellion. They cannot be charged as separate offenses in themselves. The exception is when the common crimes are committed without any political motivation. In such a case, they will not be absorbed by rebellion. Q. If homicide or murder is committed with the use of an unlicensed firearm, how many offenses are there? A. There is only one offense – murder or homicide aggravated by the use of unlicensed firearm. This is by special provision of RA 8294. (Dissenting opinion of J. Sabio – How can you complex when one is an RPC offense/malum in se and the other is a violation of aspecial law/malum prohibitum?) Q. X was speeding on a highway when his car collided with another car. The other car was totally wrecked and the driver of the other car suffered serious physical injuries. How many informations or complaints should be filed against X? A. Only one information should be filed for serious physical injuries and damage to property through reckless imprudence. The information against X cannot be split into two because there was only one negligent act resulting in serious physical injuries and damage to property. Q. Same case, but the injuries suffered by the driver were only slight physical injuries. How many information's should be filed? A. Two Informations – one for the slight physical injuries and the other for damage to property. Light felonies cannot be complexed. Section. 14. Amendment or substitution. KINDS OF AMENDMENT 1. BEFORE THE PLEA – covers both substantial and formal amendment, WITHOUT leave of court. 2. AFTER THE PLEA – covers only formal amendment provided: A. leave of court is obtained B. such amendment is not prejudicial to the rights of the accused. EXCEPT when a FACT SUPERVENES which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, there is a need for another arraignment of the accused under the amended information. The following are formal amendments: a) New allegation that relates to the range of the penalty that the court might impose in the event of conviction; b) An amendment which does not change another offense different or distinct from the charges in the original; c) Additional allegations which do not alter the prosecution’s theory of the case so as to cause surprise to the accused and effect the form of defense he has or will assume. d) Amendments which does not adversely affects any substantial rights of the accused. Q.Can the court order the dismissal of the original complaint before a new one is filed in substitution? A. No. The court will not order the dismissal until the new information is filed. An amendment is only in form where it neither affects nor alters the nature of the offense charged OR where the charge does not deprive the accused of a fair opportunity to present his defense OR where it does not involve a change in the basic theory of the prosecution. Substitution – If it appears at anytime before judgment that a mistake has been made in charging the proper offense, THE COURT SHALL DISMISS THE ORIGINAL COMPLAINT OR INFORMATION UPON THE FILING OF A NEW ONE CHARGING THE PROPER OFFENSE, provided the accused shall not be placed in double jeopardy. Limitation to the rule on substitution: 1. No judgment has yet been rendered. 2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein. 3. The accused would not be placed in double jeopardy. Amendment Substitution changes Amendment May involve either formal or substantial Involves substantial change from the original charge Amendment before the plea has been Substitution of information must be with entered can be effected without leave of leave of court as the original information court. has to be dismissed Amendment is only as to form, there is no Another preliminary investigation is need for another preliminary entailed and the accused has to plead investigation and the retaking of the plea anew to the new information of the accused. An amended information refers to the Requires or presupposes that the new same offense charged in the original information involves a different offense information or to an offense which which does not include or is not necessarily includes or is necessarily necessarily included in the original included in the original charge, hence charge, hence the accused cannot claim substantial amendments to the double jeopardy. information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. VARIANCE BETWEEN INDICTMENT AND PROOF (Situations Contemplated) 1. When the offense proved is less serious than, and is necessarily included in, the offense charged, in which case the defendant shall be convicted of the offense proved. 2. When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged. 3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of a new information charging the proper offense. The third situation set forth above is substitution of information under Section 14, Rule 110. Section 15. Place where action is to be instituted. PURPOSE: The purpose being not to compel the defendant to move to, and appear in a different court from that of the territory where the crime was committed, as it would cause him great inconvenience in looking for his witnesses and other evidence in another place (Beltran vs. Ramos, 96 Phil. 149). VENUE IS JURISDICTIONAL Venue is jurisdictional as the court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived, or changed by agreement of the parties, or by the consent of the defendant. GENERAL RULE: Subject to existing laws, in all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where the offense was committed or any of its essential ingredients occurred. Q.What is a continuing or transitory offense? Transitory offenses are crimes where some acts material and essential to the crimes and requisite to their commission occur in one municipality or territory and some in another. Continuing offenses are consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing. Examples are ESTAFA, ABDUCTION, MALVERSATION, LIBEL, KIDNAPPING, VIOLATION OF BP22. Q. How do you determine jurisdiction over a continuing crime? A. The courts of the territories where the essential ingredients of the crime took place have CONCURRENT JURISDICTION. But the court which first acquires jurisdiction excludes the other courts. EXCEPTIONS TO THE RULE OF VENUE: 1. Felonies under Art. 2 of the Revised Penal Code-Shall be cognizable by the proper court where the criminal action was first filed. 2. Complex Crimes- Where the crime charged is a complex crime, the RTC of any province in which any one of the essential elements of such complex crime had been committed has jurisdiction to take cognizance of the offense. 3. Continuing Offense - is one where the elements of which occur in several places, (unlike a LOCAL OFFENSE - one which is fully consummated in one place) The venue is in the place where one of its essential elements was consummated. 4. Piracy – The venue of piracy, unlike all other crimes, has NO territorial limits. 5. Libel – The action may be instituted at the election of the offended or suing party in the province or city: A. where the libelous article is printed and first published; B. if one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense; C. if the offended party is a public official, where the latter holds office at the time of the commission of the offense. 6. In exceptional circumstances – to ensure a fair trial and impartial inquiry. The SC shall have the power to order a change of venue or place of trial to avoid miscarriage of justice (Section 5, Article VIII, 1987 Constitution). Section 16. Intervention of the offended party in criminal action. GENERAL RULE: Offended party has the right to intervene by counsel in the prosecution of the criminal action, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111. EXCEPTIONS: 1. Where from the nature of the crime and the law defining and punishing it, NO civil liability arises in favor of the offended party; and 2. Where the offended party has waived his right to civil indemnity OR has expressly reserved his right to institute a civil action OR has already instituted said action. Q. Can the offended party intervene in the prosecution of the criminal action? A. Yes, except if he has waived, has reserved his right, or has already instituted the criminal action. The reason for this rule is because of Article 100 of the RPC which provides that every person criminally liable shall also be civilly liable and also because there are certain offenses which cannot be prosecuted except upon complaint of the offended party. *In a criminal case in which the offended party is the State, the interest of the private complainant or offended party is limited to the civil liability arising therefrom. The offended party may NOT intervene in the prosecution of the offense in the following cases: 1. Where he has WAIVED the civil action for recovery of civil liability arising from the criminal act. 2. Where he has RESERVED his right to institute the civil action separately from the criminal action; 3. Where he has ALREADY INSTITUTED THE CIVIL ACTION PRIOR to the criminal action; 4. Where from the nature of the offense, or where the law defining the offense CHARGES DOES NOT PROVIDE FOR AN INDEMNITY; 5. Where the offense does NOT INVOLVE A PRIVATE PARTY, it being the sole concern of the State. Q. Do the offended parties have the right to move for the dismissal of a case? A.NO. The right belongs only to the government prosecutor who is the representative of the plaintiff. Q. Can the offended party file a CIVIL ACTION FOR CERTIORARI in his own name if the RTC dismisses an information? A.Yes. In case of grave abuse of discretion amounting to lack of jurisdiction, the petition may be filed by the offended party because the offended party has an interest in the civil aspect of the case. RULE 111 PROSECUTION OF CIVIL ACTIONS Section 1. Institution of criminal and civil actions. GENERAL RULE: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense shall be deemed instituted with the criminal action. EXCEPTIONS: 1. when the offended party WAIVES the civil action 2. when the offended party RESERVES his right to institute a separate civil action 3. when offended party INSTITUTES A CIVIL ACTION PRIOR to the criminal action. Q. WHEN RESERVATION SHALL BE MADE? 1. BEFORE the prosecution starts to present its evidence and 2. under circumstances affording the offended party to a reasonable opportunity to make such reservation. Q. What is the reason for the rule requiring reservation? A. The reason is to PREVENT DOUBLE RECOVERY FROM THE SAME ACT OR OMISSION.  ONLY the civil liability arising from the crime charged as a felony is now deemed instituted. Civil liability arising from other sources of obligations are no longer deemed instituted like those under Article 32, 33, 34 and 2176 of the Civil Code which can be prosecuted even without reservation.  In BP 22 cases, no reservation to file the civil action separately shall be allowed. Q. What is the dual concept of civil liability? A. This means that civil liability may arise from crimes or from quasi- delicts. Thus, a negligent act causing damage may produce two kinds of civil liability – one arising from crime and another from quasi-delict. The only limitation is that the offended party may not recover twice from the same act. Q. What are the differences between a crime and a quasi-delict? A. 1.Crimes affect public interest, while quasi-delicts are only of private concern 2.The RPC punishes or corrects the criminal act, while the Civil Code merely repairs the damage by means of indemnification 3.Crimes are punished only if there is a law providing for their punishment, while quasi-delicts include all acts where fault or negligence intervenes. Therefore, quasi-delict is broader in scope. Q. What constitutes civil liability? A. According to Article 104 of the RPC, it constitutes restitution, reparation, and indemnification for consequential damages. Q. What is the basis for the broader concept of civil liability? A. The broader concept of civil liability means that every person criminally liable is also civilly liable (Art.100 RPC). This is because in a criminal offense, there are two offended parties – the state and the private offended party. Q. If the complaint does not contain an allegation of damages, is the offender still liable for them? A. Yes because every person criminally liable is also civilly liable. This is subject to the exception when the offended party has waived or has reserved the right to institute the civil action separately. RULES ON FILING FEES OF CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION 1. NO filing fees are required for amounts of ACTUAL DAMAGES, EXCEPT with respect to criminal actions for violation of BP 22, in which case, the offended party shall pay in full the filing fees based on the face value of the check as the actual damages; 2. Damages other than ACTUAL (moral, exemplary and other damages) IF SPECIFIED In the complaint or information, the corresponding filing fees shall be paid, otherwise the court will not acquire jurisdiction over such damages; 3. Where moral, exemplary and other damages are NOT specified in the complaint or information, the grant and amount thereof are left to the sound discretion of the trial court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment.  COUNTERCLAIMS, CROSS-CLAIMS, THIRD PARTY COMPLAINTS are no longer allowed in a criminal proceeding. Any claim which could have been the subject thereof may be litigated in a separate civil action. Q.In a BP 22 case, can the offended party make a reservation of the civil action? A. No. The criminal action shall be deemed to include the civil action, and the offended party is not allowed to make the reservation. The actual damages and the filing fees shall be equivalent to the value of the check. Q.Are the independent civil actions also deemed suspended with the filing of the criminal action? A. No. Only the civil action arising from the crime under Article 100 is suspended. The independent civil actions are not suspended and may continue even if the criminal action has been instituted. However, the offended party MAY NOT RECOVER TWICE from the same act. He should only get the BIGGER AWARD. Q. What is the legal principle that a person who is criminally liable is civilly liable. A. 1. As an OFFENSE AGAINST THE STATE because of the disturbance of the social order; and 2. As an OFFENSE AGAINST THE PRIVATE PERSON injured by the crime unless it involves the crime of treason, rebellion, espionage, contempt and other wherein no civil liability arises on the part of the offender either because there are no damages to be compensated or there is no private person injured in the crime. Q. What are the two injury cause by the offense? A. 1. The SOCIAL INJURY produced by the criminal act which is sought to be repaired through the imposition of the corresponding penalty. 2. The PERSONAL INJURY caused by the victim of the crime, which injury is sought to be compensated through indemnity, which is civil in nature. Section 2. When separate civil action is suspended. GR: PRIMACY OF CRIMINAL ACTION OVER CIVIL ACTION 1. After the filing of the criminal action, the civil action which has been reserved CANNOT be instituted UNTIL FINAL JUDGMENT HAS BEEN RENDERED IN THE CRIMINAL ACTION. 2. If the civil action is instituted BEFORE the filing of the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment in the criminal action has been rendered. EXCEPTIONS: 1. In cases of independent CIVIL ACTIONS BASED UPON ARTS. 32, 33, 34 AND 2176 OF THE CIVIL CODE; 2. In cases where the civil action presents a PREJUDICIAL QUESTION; 3. In cases where the CIVIL ACTION IS CONSOLIDATED WITH THE CRIMINAL ACTION; and 4. Where the CIVIL ACTION IS NOT ONE INTENDED TO ENFORCE THE CIVIL LIABILITY ARISING FROM THE OFFENSE. ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR THE FILING OF THE CIVIL CASE WHERE: 1. the ACQUITTAL IS BASED ON REASONABLE DOUBT, if the civil case has been reserved 2. the DECISION CONTAINS A DECLARATION THAT THE LIABILITY OF THE ACCUSED IS NOT CRIMINAL BUT ONLY CIVIL IN NAture and 3. THE CIVIL LIABILITY IS NOT DERIVED FROM OR BASED ON THE CRIMINAL ACT OF WHICH THE ACCUSED IS ACQUITTED (Sapiera vs. Court of Appeals, 314 SCRA 370).  Extinction of the penal action does not carry with it the extinction of the civil action, UNLESS the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. Q. Can you compel a judge by mandamus to award civil damages? A. YES, because every person criminally liable is also civilly liable and also because even if the accused is acquitted, there are cases when he is still civilly liable. Q.What is the reason for allowing the civil liability to subsist in spite of the acquittal of the accused? A. This is because the parties in the criminal and civil action are different – in the criminal action, the party is the state, while in the civil action, the party is the private offended party. Also, the two actions required different quantum of evidence. The criminal action requires proof of guilt beyond reasonable doubt, while the civil action requires mere preponderance of evidence. Section 3. When civil action may proceed independently.  The institution of an independent civil action against the offender under Articles 32, 33, 34 and 2176 of the Civil Code may proceed independently of the criminal case and at the same time without suspension of either proceeding.  Recovery of civil liability under Articles 32, 33, 34 and 2176 of the Civil Code arising from the same act or omission may be prosecuted separately even without a reservation. The reservation and waiver herein refers only to the civil action for the recovery of civil liability arising from the offense charged (DMPI Employees Credit Coop vs. Velez, G.R. No. 129282, Nov. 29, 2001). PURPOSE To prevent the offended party from recovering damages twice for the same act or omission. Q. When the defendant is absolved of civil liability in a civil action, can a criminal action still be filed against him? A.Yes. While every person criminally liable is also civilly liable, the converse is not true. Therefore, even if the defendant is absolved of civil liability in a civil action, a criminal action can still be filed against him. Besides, the state is a party in a criminal action, while only the private offended party is a party in the civil action. Moreover, the quantum of evidence in the civil action is only preponderance of evidence, while that required in the criminal action is proof beyond reasonable doubt. 4. Effect of death on civil actions. 1. AFTER arraignment and during the pendency of the criminal action - extinguishes the civil liability arising from the delict. 2. BEFORE arraignment - the case shall be DISMISSED without prejudice to any civil action the offended party may file AGAINST THE ESTATE of the deceased.  However, the independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. Section 7. Elements of prejudicial question. Prejudicial Question - that which arises in a case, the resolution of which is the logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. Rationale: to avoid two conflicting decisions. ELEMENTS OF A PREJUDICIAL QUESTION 1. The civil action must be instituted prior to the criminal action. 2. The civil action involves an issue similar or intimately related to the issue raised in the criminal action. 3. The resolution of such issue determines whether or not the criminal action may proceed. WHERE TO FILE PETITION FOR SUSPENSION BY REASON OF PREJUDICIAL QUESTION 1. Office of the prosecutor; or 2. court conducting the preliminary investigation; or 3. court where the criminal action has been filed for trial at any time before the prosecution rests. Q.When is an action for annulment of marriage prejudicial to a bigamy case? A.An action for annulment of marriage is prejudicial to a bigamy case only if the accused in the bigamy charge is also the one asking for annulment of the second (bigamous) marriage based on vitiation of consent. This is because in such a case, if the court declares that the party’s consent was indeed vitiated and annuls the marriage, then it would also mean that the party did not willingly commit the crime of bigamy. It would thus be determinative of the guilt or innocence of the accused. RULE 112 PRELIMINARY INVESTIGATION Section 1. Preliminary Investigation defined; when required. Preliminary Investigation - is an inquiry or proceeding to determine whether there exists sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial. (Sec. 1, Rule 112) Preliminary Investigation is required to be conducted BEFORE the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine. There is NO right of preliminary investigation under Section 7, Rule 112 when a person is LAWFULLY arrested unless there is a waiver of the provisions of Article 125 of the Revised Penal Code. HOWEVER, the accused can ask for Preliminary Investigation in the following cases: 1. if a person is arrested, he can ask for preliminary investigation BEFORE the filing of the complaint/information BUT he must sign a waiver in accordance with Article 125, RPC. 2. AFTER the filing of the information/complaint, the accused may, within 5 days from the time he learns of its filing ask for preliminary investigation. PURPOSES: 1. to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof; 2. to preserve evidence and keep the witnesses within the control of the State; 3. to determine the amount of bail, if the offense is bailable. Q. What is the purpose of a preliminary investigation? 1. To determine if there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. 2. To protect the accused from the inconvenience, expense, and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. 3. To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial. 4. To protect the state from having to conduct useless and expensive trials. Q. What is the scope of preliminary investigation? A. Preliminary investigation is merely INQUISITORIAL and it is often the only means of discovering whether the offense has been committed and the persons responsible for it to enable the fiscal to prepare his complaint or information. It is NOT A TRIAL ON THE MERITS and has no purpose but to determine whether there is probable cause to believe that an offense has been committed and that the accused is probably guilty of it. IT DOES NOT PLACE THE ACCUSED IN JEOPARDY. PRELIMINARY INVESTIGATION: PERSONAL STATUTORY RIGHT The right to preliminary investigation is a personal right covered by statute and may be waived expressly or by implication. Absence of preliminary investigation does not affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused. REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION 1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground 2. Insist on a preliminary investigation 3. File a certiorari, if refused 4. Raise lack of preliminary investigation as error on appeal 5. File for prohibition Q. Is the right to a preliminary investigation a fundamental right? A. No, it is a statutory right and may be waived expressly or by silence. It is also not an element of due process, unless it is expressly granted by law. Q. Can an accused demand the right to confront and cross-examine his witnesses during the preliminary investigation? A. No. The preliminary investigation is not part of the trial. It is summary and inquisitorial in nature, and its function is NOT to determine the guilt of the accused but merely to determine the existence of probable cause. Q. Is the lack of a preliminary investigation a ground for dismissing a complaint? A. No. The absence of a preliminary investigation does not affect the jurisdiction of the court but merely the regularity of the proceedings. The court cannot dismiss the complaint on this ground, and IT SHOULD INSTEAD CONDUCT THE INVESTIGATION OR ORDER THE FISCAL OR LOWER COURT TO DO IT. Q. What is the effect of the absence of a certification that a preliminary investigation was conducted? A. IT IS OF NO CONSEQUENCE. What is important is that there was actually an investigation, that the accused was informed thereof and was allowed to present controverting evidence. Q. When should the right to preliminary investigation be invoked? A. The accused should invoke it BEFORE PLEA, or else, it is deemed WAIVED. Q. What if the court denies the invocation of the right to a preliminary investigation, what is the remedy of the accused? A. He must immediately APPEAL IT TO THE APPELLATE COURT. He cannot later raise the issue for the first time on appeal. Q. If the complaint or information is amended, should a new preliminary investigation be conducted? A.No. Q. If the complaint or information is substituted, should a new preliminary investigation be conducted? A. Yes. Q. Who may conduct a preliminary investigation? 1) Provincial or city prosecutors and their assistants 2) National and Regional State Presecutors 3) Comelec with respect to election offenses 4) Ombudsman with respect to Sandiganbayan offenses and other offenses committed by public officers 5) PCGG with respect to ill-gotten wealth cases Q. Can RTC judges conduct a preliminary investigation? A. No. Although this should not be confused with the authority of the RTC to conduct an examination for the purpose of determining probable cause when issuing a warrant of arrest. Q. Can MeTC’s, MTCC’s, MTCs and MCTCs conduct Preliminary Investigation? A. They NO longer authorized to conduct Preliminary Investigation. As preliminary investigation is NOT a part of the trial, the dismissal of the case by the investigator will not constitute double jeopardy and will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to another preliminary investigation (U.S. vs. Marfori, 35 Phil. 666). Section 2. Officers authorized to conduct preliminary investigation. PERSONS AUTHORIZED TO CONDUCT A PRELIMINARY INVESTIGATION: 1. Provincial or city fiscal and their assistants 2. National and regional state prosecutors 3. Such other officers as may be authorized by law such as: the COMELEC, Ombudsman and PCGG Section 3. Procedure Filing of the complaint accompanied by the affidavits and supporting documents Within 10 days after the filing, the investigating officer shall either dismissed or issue a subpoena If subpoena is issued, respondents shall submit counter-affidavits and supporting documents within 10 days from receipt thereof Hearing (optional) it shall be held within 10 days from receipt of the counter–affidavit or from the expiration of the period of their submission Resolution of the investigating prosecutor If respondent cannot be subpoenaed, or if subpoenaed but does not submit his counter-affidavit within 10 days, investigating officer shall resolve the complaint based on the evidence presented by the complainant. RIGHTS OF RESPONDENT IN A PRELIMINARY INVESTIGATION 1. to submit counter-affidavits 2. to examine evidence submitted by the complainant 3. to be present in the clarificatory hearing. The Rules do not require the presence of the respondent in the Preliminary Investigation, what is required is that he be given the opportunity to controvert the evidence of the complainant by submitting counter-affidavits. Q. Is a preliminary investigation a judicial proceeding? A. Yes because there is an opportunity to be heard and the production and weighing of evidence upon which a decision is rendered. Since it is a judicial proceeding, the requirement of due process in judicial proceedings is also required in preliminary investigations. Q. What is the difference between criminal investigation and preliminary investigation? A. Criminal investigation is a fact-finding investigation carried out by law-enforcement officers for the purpose of determining whether they should file a complaint for preliminary investigation. Preliminary investigation is conducted for the purpose of determining if there is probable cause to hold a person for trial. Q. What is probable cause? A. Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Q. Is the presence of counsel in the preliminary investigation mandatory? A. No. Preliminary investigation is a summary proceeding and is merely inquisitorial in nature. The accused cannot yet invoke the full exercise of his rights. Q. How does the investigating prosecutor resolve the findings after preliminary investigation? 1.If he finds probable cause to hold the respondent for trial, he shall prepare the resolution and certify under oath in the information that: a. he or an authorized officer has personally examined the complainant and his witnesses; b. that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; c. that the accused was informed of the complaint and of the evidence against him; d. that he was given an opportunity to submit controverting evidence. 2. If he finds NO probable cause, he shall RECOMMEND THE DISMISSAL OF THE COMPLAINT. 3. Within 5 days from his resolution, he shall forward the record of the case to the provincial or city prosecutor of chief state prosecutor of the Ombudsman. They shall act on the resolution within 10 days from receipt and shall immediately inform the parties of such action. 4. No complaint of information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman. 5.If the investigating prosecutor recommends the dismissal of the complaint, but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or Ombudsman on the ground that probable cause exists, the latter may either: a. by himself, file the information; or b. direct another assistant prosecutor to file the information without need for a new preliminary investigation. 6.The Secretary of Justice may, UPON PETITION BY A PROPER PARTY OR BY ITSELF, REVERSE OR MODIFY THE RESOLUTION OF THE PROVINCIAL OR CITY PROSECUTOR, THE CHIEF STATE PROSECUTOR, OR THE OMBUDSMAN. In such a case, he shall direct the prosecutor concerned to either file the information without need for a new preliminary investigation or to dismiss or move for its dismissal if already filed in court. Q. What should the Secretary of Justice do if an information that has already been filed in court is appealed to him? A. He should, as far as practicable, REFRAIN FROM ENTERTAINING THE APPEAL. The matter should be left to the determination of the Court. Q. If the Secretary of Justice gives due course to the appeal, what should the trial judge do? A. He should SUSPEND proceedings and defer arraignment pending the resolution of the appeal. Q. Is the determination of probable cause a judicial or executive function? A. It depends. If it is made in a preliminary investigation for the purpose of determining whether there is reasonable ground to believe that the accused has committed the offense and should be held for trial, it is an executive function. If it is made for the issuance of a warrant of arrest by a judge, it is a judicial function. Q. What are the remedies of a party against whom a warrant of arrest has been issued? A. 1.post bail 2.ask for reinvestigation 3.petition for review 4.motion to quash the information 5.if denied, appeal the judgment after trial(no certiorari) Q. What is the difference between preliminary investigation conducted by the prosecutor and one conducted by the judge? A. The prosecutor is NOT bound by the designation of the offense in the complaint. After preliminary investigation, he may file any case as warranted by the facts. The judge cannot change the charge in the complaint but must make a finding on whether or not the crime charged has been committed. Q. What is a warrant of arrest? A. A warrant of arrest is a legal process issued by competent authority, directing the arrest of a person or persons upon grounds stated therein. Section 6. When warrant of arrest may issue Probable Cause - presupposes a reasonable ground for belief in the existence of facts warranting the proceedings complained of; -an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime charged. If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested and hold him for trial. If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of warrant of arrest. The RTC judge need NOT personally examine the complaint and witnesses in the determination of probable cause for the issuance of the warrant of arrest. He is only required to: Personally evaluate the report and the supporting documents submitted during the preliminary investigation by the fiscal; and on the basis thereof he may: a) Dismiss; b) Issue warrant; or c) Require further affidavits. REMEDY: The provincial fiscal, if he believes that the accused should be immediately placed in custody, may file the corresponding information so that the RTC may issue the necessary warrant of arrest (Samulde vs. Salvani, Jr., G.R. No. 78606, Sept. 26, 1988). While the judge may rely on the fiscal’s certification thereof, the same is NOT conclusive on him as the issuance of said warrant calls for the exercise of judicial discretion and, for that purpose, the judge may: 1. require the submission of affidavits of witnesses to aid him in arriving at the proper conclusion, OR 2. he may require the fiscal to conduct further preliminary investigation or reinvestigation. Q. When may a warrant of arrest be issued? A. By the RTC: 1. Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. 2. He may immediately dismiss the case if the evidence fails to establish probable cause. 3. If he finds probable cause, he shall issue a warrant of arrest or a commitment order if the accused has already been arrested by virtue of a warrant issued by the MTC judge who conducted the preliminary investigation or if he was arrested by virtue of a lawful arrest without warrant. 4. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5 days from notice and the issue must be resolved within 30 days from the filing of the complaint or information. B. By the MTC: 1. If the preliminary investigation was conducted by a prosecutor, same procedure as above INSTANCES WHEN WARRANT OF ARREST NOT NECESSARY 1. if the accused is already under detention; 2. if the complaint or information was filed after the accused was lawfully arrested without warrant; 3. if the offense is punishable by fine only. Section 7. When accused lawfully arrested without warrant. TWO SITUATIONS CONTEMPLATED UNDER THIS RULE: 1. When a person is lawfully arrested without a warrant for an offense requiring a preliminary investigation (sec. 1, Rule 112) and no complaint or information has yet been filed, he may ask for a preliminary investigation by signing a waiver of the provisions of Art. 125 of the RPC in the presence of his counsel. 2. When the complaint or information was filed without preliminary investigation, the accused may, within 5 days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. The 5-day period is MANDATORY, failure to file the motion zxzm43 within the said period amounts to waiver of the right to ask for preliminary investigation. Where the information was amended without a new preliminary investigation having been conducted, the 5- day period is computed from the time the accused learns of the filing of said amended information. Where the trial court has granted a MOTION FOR REINVESTIGATION, it must hold in abeyance the arraignment and trial of the accused until the prosecutor shall have conducted and made a report on the result of such reinvestigation. The right to bail pending Preliminary Investigation under Section 7, Rule 112, a person lawfully arrested may post bail before the filing of the information or even after its filing without waiving his right to preliminary investigation, provided that he asks for a preliminary investigation by the proper officer within the period fixed in the said rule (People vs. Court of Appeals, May 29, 1995). Q. Are “John Doe” warrants valid? A. Generally, John Doe warrants are void because they violate the constitutional provision that requires that warrants of arrest should particularly describe the person or persons to be arrested. But if there is sufficient description to identify the person to be arrested, then the warrant is valid. Q. What are the principles governing the finding of probable cause for the issuance of a warrant of arrest? A. 1. There is a distinction between the objective of determining probable cause by the prosecutor and by the judge. The prosecutor determines it for the purpose of filing a complaint or information, while the judge determines it for the purpose of issuing a warrant of arrest – whether there is a necessity of placing him under immediate custody in order not to frustrate the ends of justice. 2. Since their objectives are different, the judge should not rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. The judge must decide independently and must have supporting evidence other than the prosecutor’s bare report. 3.It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. He must have sufficient supporting documents upon which to make his independent judgment. Q. How should the complaint or information be filed when the accused is lawfully arrested without warrant? A. The complaint or information may be filed by a prosecutor without need for a preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules. IN THE ABSENCE OF AN INQUEST PROSECUTOR, the OFFENDED PARTY or ANY PEACE OFFICER may file the complaint directly in court on the basis of the affidavit of the offended party or peace officer. Q. What is an inquest? A. An inquest is an informal and summary investigation conducted by a public prosecutor in a criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly charged in court. Q. What are the guidelines to safeguard the rights of an accused who has been arrested without a warrant? 1.The arresting officer must bring the arrestee before the inquest fiscal to determine whether the person should remain in custody and charged in court or if he should be released for lack of evidence or for further investigation. 2.The custodial investigation report shall be reduced to writing, and it should be read and adequately explained to the arrestee by his counsel in the language or dialect known to him. Q. What does Inquest Contemplates/PRE-requisites? A. 1. lawful warrantless arrest; 2. offense is punished by at least 4 yrs and. 2 months and 1 day without regards to fine and is cognizable by the MeTC, MCTC, MTCC and MTC; 3. offense punishable by more than 6 years, without regard to fine and cognizable by the RTC; 4. A proceeding without Preliminary Investigation; 5. person arrested is in detained or taken under custody Q. Can a person arrested W/o warrant and undergoes Inquest Proceedings still asked for a Preliminary Investigation? A. Yes, he may do so within 5 days from the date of filing the Information, can ask for Preliminary Investigation, PROVIDED, he signs a waiver of Art. 125 of the RPC in the PRESENCE OF HIS COUNSEL. However, AFTER the 5 days period he can no longer invoke that right. Section 8. Records Records of the preliminary investigation shall NOT automatically form part of the records of the case. Courts are not compelled to take judicial notice thereof. It must be introduced as an evidence. Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. PROCEDURE TO BE FOLLOWED IN CASES WHICH DO NOT REQUIRED PRELIMINARY INVESTIGATION 1. Evaluate the evidence presented 2. Conduct searching questions or answers 3. Require the submission of additional evidence  For cases under the Revised Rules on Summary Procedure, no warrant shall be issued except where the accused fails to appear after being summoned. If the complaint is filed with the prosecutor involving an offense punishable by imprisonment of less than 4 years, 2 months and 1 day, the procedure in Rule 112, Section 3 (a) shall be observed. If the complaint is filed with the MTC, the same procedure under Rule 112, Section 3 (a) shall be observed. Q. What is the procedure in cases not requiring a preliminary investigation? A. 1.If filed with the prosecutor, the prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing. 2.If filed with the MTC: a) If within 10 days from the filing of the complaint or information, the judge finds no probable cause after personally examining the evidence in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the complaint or information. b) He may require the submission or additional evidence, within 10 days from notice. c) If he finds probable cause, he shall issue a warrant of arrest or a commitment order and hold him for trial. If he thinks that there is no necessity for placing the accused under custody, he may issue summons instead. Q. What is the certification required in the Investigating Prosecutor? A. If the investigating prosecutor finds sufficient grounds to hold respondent for trial (or prima facie case or probable cause to filing of information in court), he shall prepare the resolution and corresponding information with his certification. The certification by the fiscal gives rise to the presumption that a P.I was duly performed. Q. What is a clarificatory questioning? A.Is a hearing conducted by the Investigating officer, if there are facts and issued that needs to be clarified? Q. Is clarificatory hearing mandatory? A.No, the questioning is DISCRETIONARY on the part of the investigating officer. Q. Can the parties cross-examinations to each other? A. No, both parties have the right to be present but without the right to cross-examine each other. The parties may, however submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. RULE 113 ARREST Section 1. Definition of arrest. Arrest – the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1 Rule 113). Modes of Arrest 1. arrest by virtue of a warrant 2. arrest without a warrant under exceptional circumstances as may be provided by statute (Sec. 5, Rule 113). ESSENTIAL REQUISITES OF A VALID WARRANT OF ARREST 1. It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce 2. The warrant must particularly describe the person to be seized 3. A warrant of arrest has NO EXPIRY DATE. It remains valid until arrest is effected or warrant is lifted. Q. What is arrest? A. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Q.How is an arrest made? A. Arrest is made by an actual restraint of the person to be arrested or by his submission to the custody of the person making the arrest. Q.What does it mean when jurisprudence says that the officer, in making the arrest, must “stand his ground”? A. It means that the officer may use such force as is reasonably necessary to effect the arrest. Q.What is the duty of the arresting officer who arrests a person? A. He must deliver the person immediately to the nearest jail or police station. Q. Is custody of the law and Jurisdiction over the person of the accused the same? A. No, Custody of the law is accomplished either by arrest or voluntary surrender; while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant file a motion to quash the warrant. On the other hand one can be subject to the jurisdiction of the court over his person and yet not in the custody of the law such as when an accused escapes custody after his trial commence. Q. Within what period must a warrant of arrest be served? A. There is no time period. A warrant of arrest is valid until the arrest is effected or until it is lifted. The head of the office to whom the warrant was delivered must cause it to be executed within 10 days from its receipt, and the officer to whom it is assigned for execution must make a report to the judge who issued it within 10 days from the expiration of the period. If he fails to execute it, he should state the reasons therefor. REMEDY FOR WARRANTS IMPROPERLY ISSUED 1. Where a warrant of arrest was improperly issued, the proper remedy is a petition to quash it, NOT a petition for habeas corpus, since the court in the latter case may only order his release but not enjoin the further prosecution or the preliminary examination of the accused (Alimpoos vs. Court of Appeals, 106 SCRA 159). 2. Posting of bail does not bar one from questioning illegal arrest (Section 26, Rule 114, Rules of Court). Section 2. Arrest; how made. MODES OF EFFECTING ARREST 1. By an ACTUAL RESTRAINT of the person to be arrested. 2. By HIS SUBMISSION TO THE CUSTODY OF THE PERSON MAKING THE ARrest. Upon arrest, the following may be confiscated from the person arrested: 1. Objects subject of the offense or used or intended to be used in the commission of the crime; 2. Objects which are the fruits of the crime; 3. Those which might be used by the arrested person to commit violence or to escape; 4. Dangerous weapons and those which may be used as evidence in the case. Section 5. Arrest without warrant; when lawful LAWFUL WARRANTLESS ARREST 1. When, IN HIS PRESENCE, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (in flagrante delicto arrests); 2. When an offense has in fact just been committed, and he has probable cause to believe based on PERSONAL KNOWLEDGE of fact and circumstance that the person to be arrested has committed it; (Doctrine of Hot Pursuit) 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 4. Where a person who has been lawfully arrested escapes or is rescued (Sec. 13, Rule 113); 5. By the bondsman for the purpose of surrendering the accused (Sec. 23, Rule 114); and 6. Where the accused attempts to leave the country without permission of the court (Sec. 23, Rule 114). If the arrest was effected without warrant, the arresting officer must comply with the provisions of Art. 125 of the RPC, otherwise, he may be held criminally liable for arbitrary detention under Article 124 of the RPC. Q. Is the word in “ in his presence” means that the officer need to actually saw the incident? A. No, This means that the officer sees the offense although at a distance or hears the disturbance created thereby and proceeds at once to the scene thereof. Ex. While on patrol, officer heard burst of gunfire and proceed to investigate the matter. Q. What is the extent of a legitimate warrantless arrest? A. The arresting officer in a legitimate warrantless arrest cloaks him the authority to validly search and seize from the offender: 1. dangerous weapons; and 2. those that maybe used as proof in the commission of an offense. Q. What do you mean by the “ personal knowledge of facts” in arrest without a warrant? A. Personal knowledge of facts in arrest without a warrant must be based upon probable cause, which means actual belief or reasonable ground of suspicion. Ex. In a buy bust operation. Q. Is raw intelligence information or reliable information sufficient ground of warrantless arrest? A. It has been held that “reliable information” alone, absent of any overt act indicative of a felonious enterprise in the presence and within the purview of the arresting officer is NOT sufficient to constitute probable cause that would justify as in flagrante delicto arrest. Q. Who may make/effect/execute arrest? A. 1. Police officer (in both warrantless and arrest with a warrant) 2. Private Citizen (only warrantless arrest or citizen’s arrest) 3. Members of investigation staff of the NBI (under RA 157, as amended) 4. Sheriff or deputy sheriff (may arrest a witness who failed to attend and obey a subpoena despite proof of service thereof; (Sec.11, Rule 23) 5. Provincial and City Probation Officer (may arrest probationer under his care; Sec. 24. PD 986, as amended) 6. Commission of Land Transportation and his deputies (are authorized to make arrest for violation of Land Transportation and Traffic Code insofar as motor vehicles is concerned; RA 4136, as amended) Q. Who can issue a warrant of arrest? A. Only judges may issue warrant of arrest. The exceptions is in case of deportation of illegal and undesirable alien, whom the President or the Commission of Immigration may order arrested following a final order of deportation for the purpose of deportation. Q. Who are persons exempt from arrest? A. 1. Senators and Congressman in all offenses punishable by not more than 6 years imprisonment shall be privelege from arrest while Congress is n session. 2. Heads of State, Foreign Sovereign, Ambassadors, public ministers. Q. A police officer was chasing a person who had just committed an offense. The person went inside a house, so the police officer followed. Inside the house, the police officer saw drugs lying around. Can he confiscate the drugs? Can he use them as evidence? A. Yes. The plain view doctrine is applicable in this case because there was a prior valid intrusion, the police officer inadvertently discovered the evidence, he had a right to be there, and the evidence was immediately apparent. Q. What if the officer merely peeks through the window of the house and sees the drugs – can he confiscate them? Can he use them as evidence? A. He can confiscate them, without prejudice to his liability for violation of domicile. He cannot use them as evidence because the seizure cannot be justified under the plain view doctrine, THERE BEING NO PREVIOUS VALID INTRUSION. RULES ON ILLEGALITY OF ARREST 1. An accused who enters his plea of NOT guilty and participates in the trial waives the illegality of the arrest. Objection to the ILLEGALITY MUST BE RAISED BEFORE ARRAIGNMENT, otherwise it is deemed waived, as the accused, in this case, has voluntarily submitted himself to the jurisdiction of the court. 2. Illegality of warrantless arrest maybe CURED BY FILING OF AN INFORMATION IN COURT AND THE SUBSEQUENT ISSUANCE BY THE JUDGE OF A WARRANT OF ARREST. 3. Once a person has been duly charged in court, he may no longer question his detention by petition for habeas corpus, HIS REMEDY IS TO QUASH THE INFORMATION AND/OR THE WARRANT OF ARREST. Section 6. Time of making arrest. Unlike a search warrant which must be served only in daytime, an arrest may be made on any day and at any time of the day or night, even on a Sunday. This is justified by the necessity of preserving the public peace. Q. What is the duty of the arresting officer at the time of the arrest? A. To inform him of the reason of his arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. He also have the right to communicate with his lawyer, a relative or anyone he choose by the most expedient means (by telephone as by letter or by messenger). It shall be the duty of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engage by the person arrested, by any person on his behalf, or appointed by the court. Any waiver of this right shall not be valid unless made with the assistance of counsel. Any evidence obtained in violation of the procedure laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Q. Is there any criminal liability for violation of the rights of accused during custodial investigation? A. Yes, under R.A. 7438 which took effect on July 7, 1992. For failure to inform the accused of his Miranda rights and provide for competent and independent counsel the penalty is Fine of 6000 and imprisonment of 8 to 10 years or both. For obstruction, prevention and prohibition of the rights of visitation and private conference a fine of P4000 and imprisonment of 4 yrs to 6 yrs. Section 7. Method of arrest of officer by virtue of warrant. Under this rule, an arrest may be made even if the police officer is not in possession of the warrant of arrest (Mallari vs. Court of Appeals, 265 SCRA 456). Exhibition of the warrant prior to the arrest is not necessary. However, if after the arrest, the person arrested so requires, the warrant shall be shown to him as soon as practicable. Section 8. Method of arrest by officer without warrant. Section 9. Method of arrest by private person Citizen’s arrest - arrest effected by a private person. Q. What is the Custodial Investigation? A. Custodial Investigation means the questioning initiated by law enforcement officers after the person has been taken into custody or otherwise deprived of his freedom of action in any significant way. This includes practice of issuing INVITATION to a person who is investigated in connection of an offense he is suspected to have committed. Method of arrest Exception to the rule on giving information The officer shall inform the person to be 1. when the person to be arrested Sec.7 arrested the cause of the arrest and the flees; fact that the warrant has been issued for 2. when he forcibly resists before the his arrest. officer has an opportunity to inform him; and Note: The officer need not have the warrant in his possession at the time of 3. when the giving of such information the arrest BUT must show the same after will imperil the arrest. the arrest, if the person arrested so requires. Sec. 8 The officer shall inform the person to be when the person to be arrested is arrested of his authority and the cause engaged in the commission of an offense of the arrest w/out a warrant or is pursued immediately its commission; when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him; and when the giving of such information will imperil the arrest. Sec. 9 The private person shall inform the 1. when the person to be arrested is person to be arrested of the intention engaged in the commission of an offense to arrest him and the cause of the arrest. or is pursued immediately its commission; Note: Private person must deliver the 2. when he has escaped, flees, or forcibly arrested person to the nearest police resists before the officer has an station or jail, otherwise, he may be held opportunity to so inform him; and criminally liable for illegal detention. 3. when the giving of such information will imperil the arrest. Method of arrest with a warrant of arrest: 1. cause of his arrest; 2. fact that a warrant has been issued for his arrest. 3. shall show the warrant of arrest when the person arrested so requires; 4. may summon assistance of other person make arrest; 5. may break into any building or enclosure to effect arrest; 6. may break out therefrom; 7. shall deliver the person arrested to the nearest police station or jail; 8. shall inform the person arrested of his constitutional rights. Method of arrest without a warrant: 1. Shall inform the person to be arrested of the 2. authority of his arrest; 3. cause of his arrest. 4. may summon assistance of other person make arrest; 5. may break into any building or enclosure to effect arrest; 6. may break out therefrom; 7. shall deliver the person arrested to the nearest police station or jail; 8. shall inform the person arrested of his constitutional rights. Method of warrantless arrest by a private person: 1. Shall inform the person arrested of his: a. Intention to arrest him; and b. Cause of arrest 2. Cannot summon assistance of other person to make arrest; 3. Cannot break into any building or enclosure to effect arrest; and 4. Shall deliver the person arrested to the nearest police station or jail. Section 10. Officer may summon assistance. Only an officer making the arrest is governed by the rule. It does not cover a private individual making an arrest. Section 11. Right of officer to break into building or enclosure. Requisites before an officer can break into a building or enclosure to make an arrest: 1. That the person to be arrested is or is reasonably believed to be in said building; 2. That he has announced his authority and purpose for entering therein; 3. That he has requested and been denied admittance. Generally, a lawful arrest may be made anywhere, even on private property or in a house. This rule is applicable both where the arrest is under a warrant, and where there is valid warrantless arrest. Section 12. Right to break out of the building or enclosure to effect release. A private person making an arrest CANNOT break in or out of a building or enclosure because only officers are allowed by law to do so. Section 13. Arrest after escape or rescue. Where a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the country. The pursuit must be immediate. Section 14. Right of Attorney or relative to visit person arrested. RA 7438 defined certain rights of persons arrested, detained, or under custodial investigation, with the penalties for violations thereof. RULE 114 BAIL Bail defined. Bail -- the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions specified by the rule (Sec. 1, Rule 114).  A person is in the custody of law when he has been either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. ALL PERSONS, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law (Section 13, Article III, 1987 Constitution). Forms of bail: 1. corporate surety 2. property bond 3. cash deposit 4. Recognizance Q. What is recognizance? A. Recognizance is an obligation of record, entered into before a court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial. Bailbond

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