Criminal Procedure Lecture Notes PDF

REQUISITES OF CRIMINAL JURISDICTION Three (3) important requisites which must be present before a court can acquire criminal jurisdiction: 1. over the subject matter; 2. over the territory where the offense was committed; 3. over the person of the accused. (Cruz vs. CA et.al., G.R. No. 123340, Au...

REQUISITES OF CRIMINAL JURISDICTION Three (3) important requisites which must be present before a court can acquire criminal jurisdiction: 1. over the subject matter; 2. over the territory where the offense was committed; 3. over the person of the accused. (Cruz vs. CA et.al., G.R. No. 123340, August 29, 2002)  PROSECUTION OF OFFENSES – RULE 110 Criminal action One by which the State prosecutes a person for an act or omission punishable by law. HOW ARE CRIMINAL ACTIONS BEING INSTITUTED Criminal actions are instituted by: 1. Filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation for offenses where a preliminary investigation is required; 2. For all other offenses, by filing the complaint or information directly with the MTC and MCTC, or the complaint with the office of the prosecutor (Sec. 1, Rule 110) REMINDER:  for Metro Manila and other chartered cities, the complaint shall be filed with the prosecutor regardless of the imposable penalty (Sec. 1 (b), Rule 110),  while cases falling within the jurisdiction of the RTC are always commenced by information filed by the prosecutor  Direct filing of a complaint or information with the RTC or MeTC or other chartered cities there is no direct filing of an information or complaint with the RTC because its jurisdiction covers offenses which require preliminary investigation there is likewise no direct filing with the MeTC because in Manila, including other chartered cities, the complaint shall be filed with the office of the prosecutor, unless otherwise provided by their charters in case of conflict between a city charter and a provision of the Rules of Court, the former, being substantive law, prevails  EFFECT OF INSTITUTION OF A CRIMINAL ACTION RULE: It interrupts the running of the period of prescription of the offense charged (Sec. 1, Rule 110). The SC categorically interpreted Section 9 of the Rule on Summary Procedure to mean that the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that, which is in consonance with Section 2 of Act No. 3326. (Zaldivia vs. Reyes, 211 SCRA 227, (1992). “Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at that time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.” Under Sec. 2 of Act No. 3326, the term “judicial proceedings” appear before investigation and punishment in the old law, the term proceedings should now be understood either executive or judicial in character; executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage - with this clarification, any kind of investigative proceedings instituted against the guilty person which may ultimately lead to his prosecution should be sufficient to toll prescription. (Panaguiton vs. DOJ, Tongson and Cawili, G.R. No. 167571, November 25, 2008) WHO MAY FILE THEM, CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO These are crimes or offenses which cannot be prosecuted except on complaint filed by the offended party or if the offended party is a minor, by the parents, grandparents or the guardian. REMINDER: These are also known as private crimes. WHAT IS THE EFFECT OF AFFIDAVIT OF DESISTANCE?  The offenses of seduction, abduction , rape or acts of lasciviousness shall not be prosecuted except upon complaint filed by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above named persons, as the case may be, the pardon to justify the dismissal of the complaint should have been made prior to the institution of the criminal action.(Alonte vs. Savellano, Jr. 287 SCRA 245)  The SC explained that the continuance of the prosecutions for seduction, abduction , rape and acts of lasciviousness is not prohibited nor does it order the dismissal of said cause if the offended party pardons the offender after the cause has been instituted.(People vs. Miranda,57 Phil 274)  The pardon afforded the offenders for adultery and concubinage must likewise come before the institution of the criminal prosecution and must be for both offenders to be effective. (People vs. Infante, 57 Phil 138)  By virtue of R.A.8353 (Anti-Rape Law) rape is now classified as crime against person and no longer a crime against chastity.  Thus, rape is no longer a private crime or that which cannot be prosecuted except upon a complaint filed by the aggrieved party. It may now be prosecuted de oficio.  WHO MUST PROSECUTE CRIMINAL ACTIONS  It is a cardinal principle that all criminal actions, either commenced by complaint or by information, shall be prosecuted under the direction and control of the fiscal. (People vs. Valdemorro, 102 SCRA 170)  The rule therefore in this jurisdiction is that once a complaint or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court.  Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court, he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. (Crespo vs. Judge Mogul et. al. , G.R. No. L-53373, June 30, 1987)  While the Crespo doctrine has settled that the trial court is the sole judge on whether a criminal case should be dismissed (after the complaint or information has been filed in court), still, any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He is, after all, in control of the prosecution of the case and he may have his own reasons why the case should not be dismissed. It is only after hearing the prosecuting fiscal's view that the Court should exercise its exclusive authority to continue or dismiss the case. (Republic vs. Sunga, L38634, June 20, 1988) WHO IS THE OFFENDED PARTY?  The offended party in the commission of a crime, public or private is the party to whom the offender is civilly liable in light of Art. 100 of the RPC” which expressly provides that “every person criminally liable for a felony is also civilly liable “ (Garcia vs. CA, 266 SCRA 678)  The State as represented by the Fiscal is the offended party in the prosecution of crimes involving violations of R.A. 6425 (People vs. Villarama)  WHO MAY FILE RULE: All criminal actions initiated by complaint or information are filed by the prosecutor. XPNs: Private crimes which may only be prosecuted by a complaint filed by the private offended party, i.e: 1. Adultery and concubinage; 2. Seduction, abduction and acts of lasciviousness; and abovementioned offenses (Sec. 5, Rule 110) Party who may legally file a complaint for adultery or concubinage Only the offended spouse may file a complaint for adultery or concubinage (Sec. 5, Rule 110).  CRIMINAL ACTIONS, WHEN ENJOINED RULE: The long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society (Domingo v. Sandiganbayan, G.R. No. 109376, January 20, 2000) XPNs: 1. To prevent the use of the strong arm of the law in an oppressive and vindictive manner; 2. To afford adequate protection to constitutional rights; 3. For the orderly administration of justice (Hernandez v. Albano, G.R. No. 19272, January 25, 1967); 4. To avoid multiplicity of actions; 5. In proper cases, because the statute relied upon is unconstitutional, or was held invalid; 6. When the acts of the officer are without or in excess of authority (Planas v. Gil, G.R. No. L-46440, January 18, 1939); 7. When the court has no jurisdiction over the offense (Lopez v. City Judge, G.R. No. L- 25795, October 29, 1966). 8. When there is a prejudicial question which is sub judice (before a court or judge for consideration); 9. Where the prosecution is under an invalid law, ordinance or regulation; 10. When double jeopardy is clearly apparent; 11. Where it is a case of persecution rather than prosecution; 12. Where the charges are manifestly false and motivated by lust for vengeance; and 13. Where there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.  CONTROL OF PROSECUTION Prosecution of criminal actions RULE: The public prosecutor shall prosecute, direct and control all criminal actions commenced by a complaint or information. XPNs: The private prosecutor (private counsel) may prosecute the case provided that: 1. heavy work schedule; or 2. lack of public prosecutors; 3. authorized in writing by the Chief Prosecution Office or Regional State Prosecution; and 4. subject to the court’s approval (Sec. 5, Rule 110) Prescription of the authority of the private prosecutor The authority of the private prosecutor shall continue until the end of the trial unless the authority is revoked or withdrawn (Sec. 5, Rule 110).  INFORMATION vs. COMPLAINT INFORMATION COMPLAINT Information is an accusation Complaint is a sworn written in writing charging a person statement charging a person with an offense, subscribed by with an offense, subscribed by the prosecutor and filed by him the offended party, any peace with the court (Sec. 4, Rule officer, or other public officer 110). charged with the enforcement of the law violated (Sec. 3).  SUFFICIENCY OF COMPLAINT OR INFORMATION  The real nature of the crime charged in an information or complaint is determined not by the title of the complaint, nor by the specification of the provision of law alleged to have been violated, but by the facts alleged in the complaint or information. (People vs. Arlegui, et al., G.R. No. 62117, April 2, 1984)  The label or caption in the information in respect of the crime committed is not controlling - what matters are the material allegations in the information. (People vs. Camba, G.R. No. L-36471, November 19, 1984)  The true test in ascertaining the validity and sufficiency of an Information is "whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged.“(People vs. Sandiganbayan, et al., G.R. No. 1606019, Sept. 9, 2015)  To meet the test of sufficiency, therefore, it is necessary to refer to the law defining the offense charged. (Reyes vs. People, G.R. No. 232678, July 3, 2019) An Information only needs to state the ultimate facts constituting the offense; the evidentiary and other details (i.e., the facts supporting the ultimate facts) can be provided during the trial.  The distinction between the elements of the offense and the evidence of these elements is analogous or akin to the difference between ultimate facts and evidentiary facts in civil cases.  Ultimate facts are the essential and substantial facts which either form the basis of the primary right and duty or which directly make up the wrongful acts or omissions of the defendant, while  evidentiary facts are those which tend to prove or establish said ultimate facts. x x x.(Enrile vs. People, et al., G.R. No. 213455, August 11, 2015)  DESIGNATION OF THE OFFENSE (Sec. 8, Rule 110) An accused person may be convicted of "any crime described and charged by the facts set out in the information," irrespective of, and without regard to the designation or characterization of the crime set forth in the title of the complaint or information by the private complainant or the public prosecuting officer. (US vs. Campo, G.R. No. 7321, November 5, 1912) DUPLICITY OF OFFENSES; EXCEPTION RULE: A complaint or information must charge only one offense. XPNs: When the law prescribes a single punishment for various offenses (Sec. 13, Rule 110), e.g.: 1. Complex crimes; 2. Special complex crimes; 3. Continuous crimes or delicto continuado; 4. Crimes susceptible of being committed in various modes; and 5. Crimes of which another offenses is an ingredient REMINDER: Should there be duplicity of offense in the information, unless a single punishment for various offenses is prescribed, the accused must move for the quashal of the same before arraignment (Sec. 3, Rule 117). Otherwise, he is deemed to have waived the objection and may be found guilty of as many offenses as those charged and proved during the trial. (Sec. 3, Rule 120).  AMENDMENT vs. SUBSTITUTION OF INFORMATION (Sec. 14, Rule 110) AMENDMENT SUBSTITUTION May involve either formal or substantial Involves substantial change from the changes. original charge. Amendment before the plea is entered can be It must be with leave of court as the original effected without leave of court. information has to be dismissed. An amendment as to form will not require Substitution of the information entails another preliminary investigation and another preliminary investigation and plea retaking of plea of the accused. to the new information. An amended information refers to the same Requires or presupposes that the new offense charged in the original information or information involves a different offense to an offense which necessarily includes or is which does not include or is not necessarily necessarily included in the original charge, included in the original charge hence the hence substantial amendments to the accused cannot claim double jeopardy. information after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy.  Test in determining whether an accused is prejudiced by an amendment of an information: whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. (People v. Casey, G.R. No. L-30146, February 24, 1981) Notwithstanding the contrast between substantial and formal amendments, substantial amendments to the information are even permissible as long as the requirements of due process - that the accusation be in due form and the accused be given notice and an opportunity to answer the charge - are complied with. (People vs. Olarte, G.R. No. 233209, March 11, 2019) Any amendment to an information which only states with precision something which has already been included in the original information, and therefore, adds nothing crucial for conviction of the crime charged is only a formal amendment that can be made at anytime. It does not alter the nature of the crime, affect the essence of the offense, surprise, or divest the accused of an opportunity to meet the new accusation. The following are mere formal amendments: 1. new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; 2. an amendment which does not charge another offense different or distinct from that charged in the original one; 3. additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and 4. an amendment which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. (Corpus, et al. vs. Pamular, et al., G.R. No. 186403, Sept. 5, 2018)  PROSECUTION OF CIVIL ACTIONS - RULE 111 RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTION RULE: The institution or filing of the criminal action includes the institution therein of the civil action for recovery of civil liability arising from the offense charged. XPNs: When the offended party: 1. Waives the civil action; 2. Reserves his right to file a separate civil action; or 3. Institutes a civil action prior to the criminal action (Sec. 1, Rule 111). RESERVATION TO FILE A SEPARATE ACTION Jurisprudence instructs that the reservation may not be necessarily expressed but may be implied, which may be inferred not only from the acts of the offended party but also from acts other than those of the latter (Herrera, 2007) REMINDER: Failure of the court to pronounce judgment as to the civil liability amounts to the reservation of the right to a separate civil action. Period when reservation of the right to file civil action be made The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting the evidence, and under circumstances affording the offended party a reasonable opportunity to make the reservation (Sec. 1 (2), Rule 111). Effect of reserving the right to file a separate civil action The prescriptive period of the civil action that was reserved shall be tolled (Sec. 2, Rule 111). Instances when the reservation to file a separate civil action is NOT ALLOWED: 1. Criminal action for violation of BP 22 (Sec. 1 (b) Rule 111); “The criminal action for violation of BP.22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed”. (How about in small claims?) 2. A claim arising from an offense which is cognizable by the Sandiganbayan (Herrera, 2007); and 3. Tax cases. REMINDER: Only the civil liability arising from the crime charged (cause of action arising from delict) as a felony is now deemed instituted (Sarmiento, Jr. vs. Court of Appeals, G.R. No. 122502, December 27, 2002)  WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY Instances when civil actions may proceed independently: 1. Arising from breach of contract; and 2. Independent civil actions or those based on Arts. 32, 33, 34, and Art. 2176 of the NCC or quasi- delict (Herrera, 2007). EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL ACTION If the accused died: 1. After arraignment and during the pendency of the criminal action RULE: the civil liability of the accused based on the crime is extinguished XPN: a.) independent civil action based on Arts. 32, 33, 34 and 2176 of the Civil Code; and b.) other sources of obligations, i.e. law, contract, and quasi- contract, which are subsequently instituted; 2. Before arraignment – the offended party may file the civil action against the estate of the deceased (Sec. 4, Rule 111) 3. Pending appeal a. Civil liability arising from the crime is extinguished b. Civil liability predicated from another source survives i.e., civil liability arising from law, contracts, quasi-contracts and quasi- delict. REMINDER: In nos. 1 and 3 (b), the civil action may be continued against the estate or legal representative of the accused after proper substitution, as the case may be (Sec. 4, Rule 111). Where the civil liability survives, it may be pursued by the filing of a separate civil action unless otherwise waived, reserved or instituted prior to the institution of the criminal action (Herrera, 2007)  PREJUDICIAL QUESTION It is an issue involved in a civil action which is similar or intimately related to the issue raised in a criminal action, the resolution of which determines whether or not the criminal action may proceed. REMINDER: The prejudicial question may be raised during the preliminary investigation of the offense or in court at any time before the prosecution rests its case. (Sec. 6, Rule 111) Elements: 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 subsequent criminal action; and 3. The resolution of such issue determines whether or not the criminal action may proceed (Sec. 7, Rule 111).  Not all previous questions are prejudicial, although all prejudicial questions are necessarily previous. If any action at all must be suspended, it would be the civil and in no way the criminal action. (Berbari vs. Concepcion, G.R. No. 16189, February 26, 1920) Example: A civil action for the annulment of the second marriage is, with respect to the criminal charge for bigamy a prejudicial question as to require its adjudication before the criminal prosecution may proceed. However, where the only ground upon which the civil action for annulment is based is that the second marriage was contracted allegedly in good faith at a time when the first marriage was still in existence, such civil action does not constitute a prejudicial question for there is no issue therein that may be determinative of petitioner's innocence in the criminal case. That second marriage was contracted in good faith is immaterial in the civil action. It is material only in the criminal case to show lack of criminal intent. (De la Cruz vs. City Fiscal of Dagupan, G.R. No. L-13354, December 29, 1959)  The intra-corporate dispute posed a prejudicial question to the criminal case of theft. The civil case involves the same parties and is for nullification of the company’s meetings, election and acts of its directors and officers, among others. Court intervention was sought to ascertain who between the two contesting group of officers should rightfully be seated at the company’s helm. Without the civil case resolution, the authority to commence and prosecute the criminal case against respondents for qualified theft in the company’s behalf remained questionable, warranting the suspension of the criminal proceedings.(JM Dominguez Agronomic Company, Inc. vs. Dagdagan, et al., G.R. No. 208587, July 29, 2015)  The Complaint in SEC case prays for the nullification of the election of the directors and officers, including Buban. Essentially, the issue is the authority of the officers to act for and behalf of the corporation. On the other hand, the issue in the criminal case pertains to whether respondents committed estafa.  The resolution of the issue of misappropriation by respondents depends upon the result of the SEC case. If it is ruled in the SEC case that the present directors and officers were not validly elected, then respondent may have every right to refuse remittance of rental to Buban. x x x Verily, the result of SEC case will determine the innocence or guilt of respondents in the criminal case for estafa. (People vs. Arambulo, et al., G.R. No. 186597, June 17, 2015)  RULE ON FILING FEES IN CIVIL ACTION DEEMED INSTITUTED WITH THE CRIMINAL ACTION 1. Actual damages RULE: No filing fee is required. XPN: B.P. 22 cases, wherein the amount of the filing fees shall be equivalent to the amount of the check involved. 2. Liquidated, moral, nominal temperate or exemplary damages – The filing fee shall be based on the amount alleged in the complaint or information (Sec. 1 (4), Rule 111). REMINDER: If the amount of the damages claimed is not specifically alleged in the complaint or information, but the court subsequently awards such, the filing fees based on the amount awarded shall constitute a first lien on the judgment (Sec. 1(3), Rule 111).  PRELIMINARY INVESTIGATION - RULE 112 NATURE OF RIGHT It is an inquiry or proceeding to determine whether 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 (Sec. 1, Rule 112). It is merely inquisitorial and a means of determining the persons who may be reasonably charged with a crime. It is not a trial of the case on the merits (Herrera, 2007). The right to a preliminary investigation is not “a mere formal or technical right “ but a “substantive” one forming part of due process in criminal justice. (LADLAD et. al vs. VELASCO et. al, G.R. Nos. 172070-72, June 1, 2007).  xxx the absence of a preliminary investigation does not affect the jurisdiction of the trial court but merely the regularity of the proceedings.  It does not impair the validity of the Information or otherwise render it defective.  Neither is it a ground to quash the Information or nullify the order of arrest issued against him or justify the release of the accused from detention.  However, the trial court should suspend proceedings and order a preliminary investigation considering that the inquest investigation conducted by the State Prosecutor is null and void. (San Agustin vs. People, G.R.No. 158211, August 31, 2004) When required Preliminary Investigation is required to be conducted before filing of 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 fine. Whether or not there is a need for a PI under Sec. 1 in relation to Sec. 9 of Rule 112 depends upon the imposable penalty for the crime charged in the complaint filed with the City or Provincial Prosecutor’s office and not upon the imposable penalty for the crime found to have been committed by the respondent after a PI. In a case, the complaint filed by NBI with DOJ was kidnapping/serious illegal detention, the imposable penalty is reclusion perpetua to death, however, the Information filed with the MeTC was arbitrary detention under Article 124, par. 1 of the RPC punishable by arresto mayor in its maximum period to prision correctional in its medium period, which has a range of 4 months and 1 day to 2 years and 4 months Period when preliminary investigation is required to be conducted RULE: Before the filing of a complaint or information for an offense where the penalty prescribed by law is imprisonment of at least 4 years, 2 months and 1 day without regard to the imposable fine. (Sec. 1, Rule 112). XPNs: 1. where an information or complaint is filed pursuant to Sec. 7, Rule 112,, i.e. the complaint or information is filed directly in court ; or 2. For cases requiring preliminary investigation, when a person is lawfully arrested without a warrant provided that inquest was made in accordance with Rule 112. (Sec. 6, Rule 112). REMINDER: Cases falling under summary procedure or punishable with a penalty of imprisonment less than 4 years, 2 months and 1 day do not require preliminary investigation.  WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF PROBABLE CAUSE Probable cause in preliminary investigation It is the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was prosecuted. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt (Sps. Balangauan v. CA, G.R. No. 174350, August 13, 2008).  PERSONS AUTHORIZED TO CONDUCT A PRELIMINARY INVESTIGATION 1. Provincial or city prosecutors and their assistants; 2. National and Regional State prosecutors; and 3. Other officers as may be authorized (officer deputized by COMELEC for election offenses) REMINDER: Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdiction (Sec. 2, Rule 112)  RESOLUTION OF INVESTIGATING PROSECUTION If the investigating prosecutor finds cause to hold the defendant for trial, he shall prepare the resolution and information (Sec. 4, Rule 112). The information shall contain a CERTIFICATION by the investigating officer under oath in which he shall certify the following: 1. That he has personally examined the complainant and his witnesses; 2. That there is reasonable ground to believe that a crime has been committed; 3. That the accused is probably guilty thereof 4. That the accused was informed of the complaint and of the evidence submitted against him; and 5. That he was given an opportunity to submit controverting evidence (Sec. 4, Rule 112).  The information is valid notwithstanding the absence of a certification as to the holding of a PI, for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such.  That the right to the PI itself must be asserted or invoked before the plea, otherwise, it is deemed waived, it stands to reason, that the absence of the certification in question is also waived by failure to allege it before the plea. (Estrella vs. Ruiz, G.R. No. L-38621, August 30, 1974) If the absence of a certification would not even invalidate the information, then its presence, although deficient because of some missing clauses or phrases required under Section 4, Rule 112 of the Rules of Court, can do nothing worse than the former. (Pecho vs. Sandiganbayan, G.R. No. 111399, Nov. 14, 1994) What is not allowed is the filing of the information without a PI having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that a PI should first be conducted. (People vs. Marquez, G.R. No. L-23654, March 28, 1969) Who is authorized to file or dismiss complaint or information? “No complaint or 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 or his deputy.” (3rd par. Sec.4, Rule 112) The supposed lack of written authority or approval to file the Informations is a waivable ground for a motion to quash information. In instances where the information is filed by an authorized officer, like a public prosecutor, without the approval of the city prosecutor appearing in the information, but the resolution for filing of the information bears the approval of the city prosecutor, or his or her duly authorized deputy, and such lack of approval is timely objected to before arraignment, the court may require the public prosecutor to have the signature of the city prosecutor affixed in the information to avoid undue delay.  However, if the objection is raised after arraignment, at any stage of the proceeding or even on appeal, the same should no longer be a ground to declare the information as invalid, because it is no longer a question of jurisdiction over the case.  After all, the resolution of the investigating prosecutor attached to the information carries with it the recommendation to file the information and the approval to file the information by the prosecutor, or his or her duly authorized deputy.  If the information is filed by the public prosecutor without the city prosecutor's or his or her deputy's approval both in the information and, the resolution for the filing thereof, then the court should require the public prosecutor to seek the approval of the city prosecutor before arraignment; otherwise, the case may be dismissed on the ground of lack of authority to file the information under Section 3(d), Rule 117. This ground may be raised at any stage of the proceedings, which may cause the dismissal of the case.  If, however, the information is filed by an unauthorized official-not a public prosecutor, like a private complainant, or even public officers who are not authorized by law or rule to file the information-then the information is invalid from the very beginning, and the court should motu proprio dismiss the case even without any motion to dismiss, because such kind of information cannot confer upon the court jurisdiction over the case. (Ongkingco and Ongkingco vs. Kazuhiro Sugiyama and People, G.R. No. 217787, September 18, 2019) WHEN WARRANT OF ARREST MAY ISSUE Actions by the judge upon the filing of the Complaint or Information Within (10 days) from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor. In conducting the evaluation of the resolution, the judge shall look into supporting evidence (Sec. 5, Rule 112). Options of the judge upon the filing of Information 1. Dismiss the case if the evidence on record clearly failed to establish probable cause; 2. If he or she finds probable cause, issue a warrant of arrest or issue a commitment order of the accused has already been arrested pursuant to a warrant of arrest or lawfully arrested without warrant; and 3. In case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within five (5) days from notice, the issue to be resolved by the court within thirty (30) days from the filing of the information. REMINDER: It bears stressing that the judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause (Ong v. Genio, G.R. No. 182336, December 23, 2009). CAN A JUDGE ISSUE WARRANT DESPITE PENDING PETITION FOR REVIEW? The function of the judge to issue a warrant of arrest upon the determination of probable cause is exclusive and cannot be deferred pending the resolution of a petition for review by the Secretary of Justice as to the finding of probable cause, which is a function that is executive in nature. To defer the implementation of the warrant of arrest would be an encroachment on the exclusive prerogative of the judge to issue a warrant of arrest. (Tagastason, et al. vs. People, et al., G.R. No. 222870, July 8, 2019) CAN THE ACCUSED MOVE FOR BILL OF PARTICULARS WHILE THE COURT IS DETERMINING PROBABLE CAUSE TO ISSUE WARRANT? The question of whether there is probable cause to issue a warrant of arrest against an accused, is separate and distinct from the issue of whether the allegations in the Information have been worded with sufficient definiteness to enable the accused to properly plead and prepare his defense. While the grounds cited for each may seemingly be the same, they are submitted for different purposes and should be appreciated from different perspectives, so that the insufficiency of these grounds for one does not necessarily translate to insufficiency for the other. Thus, the resolution of the issue of probable cause should not bar the accused from seeking a more detailed averment of the allegations in the Information. (Enrile vs. People, et al., G.R. No. 213455, August 11, 2015) CASES NOT REQUIRING A PRELIMINARY INVESTIGATION 1. When the penalty prescribed by law for the offense involves an imprisonment of less than 4 years, 2 months and 1 day; 2. If a person is arrested lawfully without a warrant involving an offense which requires preliminary investigation, an information or complaint may be filed against him without need for a preliminary investigation, provided an inquest has been conducted in accordance with existing rules (Sec. 6, Rule 112 as amended by A.M. No. 05-08-26-SC, August 30, 2005).  Institution of cases when preliminary investigation is NOT required 1. By filing the complaint directly with the prosecutor; or REMINDER: 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 (Sec. 8(a), Rule 112). 2. By filing the complaint or information with the MTC  REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION Period to properly question the lack of preliminary investigation The accused must do so before he enters his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial. An application for or admission of the accused to bail does not bar him from raising such question. (Sec. 26, Rule 114). Failure to invoke the right before entering a plea will amount to a waiver. Remedies available to the accused if there was no preliminary investigation conducted pursuant to a lawful warrantless arrest. 1. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the presence of his counsel; REMINDER: Art. 125 of the RPC deals with the period of delay in the delivery of detained persons to the proper judicial authorities. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel (Art. 125, RPC). 2. The waiver by the person lawfully arrested of the provisions of Art. 125 of the RPC does not preclude him from applying for bail; 3. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his evidence as provided in this Rule (Sec. 6, Rule 112). INQUEST It is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court (Sec. 1, DOJ Circular No. 61). DUTIES OF AN INQUEST OFFICER The initial duty of the inquest officer is to determine if the arrest of the detained person was valid; should the inquest officer find that the arrest was not made in accordance with the Rules, he shall: 1. Recommend the release of the person arrested or detained.; 2. Note down the disposition on the referral document; 3. Prepare a brief memorandum indicating the reasons for the action taken; and 4. Forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action (Sec. 9, DOJ Circular No. 61).  ARREST - RULE 113 ARREST, HOW MADE It is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2 Rule 113) REMINDER: Arrest may be made on any day, at any time of the day or night (Sec. 6, Rule 113). 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 must make a report to the judge who issued the warrant within (10) days from the expiration of the period. If he fails to execute it, he should state the reasons therefore (Sec. 4, Rule 113)  ARREST WITHOUT WARRANT, WHEN LAWFUL Instances when warrant of arrest is NOT necessary: 1. Accused is already under detention; 2. Complaint or information was filed pursuant to a valid warrantless arrest; and 3. Complaint or information is for an offense penalized by fine only (Sec. 5 (c), Rule 112).  INSTANCES OF A VALID WARRANTLESS ARREST 1. When in the presence of the arresting person, the person to be arrested has committed, is actually committing or is attempting to commit an offense (in flagrante delicto arrest); 2. When an offense has in fact been committed and the arresting person has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (doctrine of hot pursuit);  REMINDER: There must be compliance with the element of immediacy between the time of the commission of the crime and the time of arrest (People v. Salvatiera, G.R. No. 104663, July 24, 1997). 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 (escapee) (Sec. 5, Rule 113). ARREST MADE BY OFFICER WITHOUT WARRANT RULE: No peace officer or person has the power or authority to arrest anyone without a warrant except in those cases expressly authorized by law (Umil vs. Ramos, G.R. No. 81567, October 3, 1991) Can a peace officer arrest a person who has a warrant but the peace officer is not in possession of the warrant at the time of the arrest? xxx xxx xxx “The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.” (2nd sentence, Sec.7, Rule 113 ) XPNs: 1. In flagrante delicto arrests – When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Elements: (a) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; (b) such overt act is done in the presence or within the view of the arresting officer. The officer himself witnessed the crime. Failure to comply with the overt act test renders an in flagrante delicto arrest constitutionally infirm. 2. Buy-bust Operation – A form of entrapment which has been repeatedly accepted to be a valid means of arresting violators of the Dangerous Drugs Law. The violator is caught in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime (People v. Juatan G.R.No. 104378, August 20, 1996). 3. Hot Pursuit Arrest – When an offense has in fact just been committed and he has probable cause to believe based on personal knowledge of facts OR circumstances that the person to be arrested has committed it. Elements: a. An offense has been committed close proximity between the arrest and the time of commission of the crime (Pamaran, 2007); b. The offense has just been committed; and c. Probable cause base on personal knowledge on the part of the person making the arrest, of facts or circumstances that the person/s to be arrested committed it (Herrera, 2007). A hearsay tip by itself does not justify a warrantless arrest. Law enforcers must have personal knowledge of facts, based on their observation, that the person sought to be arrested has just committed a crime. (Veridiano vs. People, G.R. No. 200370, June 7, 2017) 4. Evasion of service of sentence by prisoner – 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. 5. Where a person who has been lawfully arrested escapes or is rescued (Sec. 13, Rule 113). 6. By the bondsman for the purpose of surrendering the accused (Sec.23, Rule 114). 7. Where the accused out on bail attempts to leave the country without permission of the court (Sec.23, Rule 114). Period for officers to deliver the person detained under Art. 125 of the RPC The person must be delivered to the judicial authorities within the period specified in Art. 125 (Delay in the delivery of detained persons to the proper judicial authorities: 1. 12 hours - Light penalties 2. 18 hours - Correctional penalties 3. 36 hours - Afflictive or capital penalties Essential requisites of a valid warrant of arrest: 1. Issued upon probable cause; 2. Probable cause is to be determined personally by the judge after examination under oath of the complainant and the witnesses he may produce; 3. The judge must personally evaluate the report of the prosecutor and the evidence adduced during the preliminary examination (Soliven v. Makasiar G.R. No. L-82585, November 14, 1988); REMINDER: A warrant of arrest issued based only on the prosecutor’s findings and recommendation like the information and resolution finding a probable cause, without the court determining on its own the issue of probable cause based on evidence is null and void (Ho vs. People, G.R. No. 106632, October 9, 1997; Pamaran, 2007). 4. The warrant must particularly describe the person to be arrested; and 5. It must be in connection with specific offense or crime. Period of the validity of a warrant of arrest No time limit is fixed for the validity of a warrant of arrest, unlike a search warrant, which is effective only for 10 days (Pamaran, 2007). It remains valid until arrest is effected or the warrant is lifted (Mangangan vs. CFI, G.R. No. 82760, August 30, 1990). Remedy for warrant of arrest 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 (Alimpos v. CA, G.R. No. L-27331, July 30, 1981). The invalidity of an arrest leads to several consequences, among which are: (a) the failure to acquire jurisdiction over the person of an accused; (b) criminal liability of law enforcers for illegal arrest; and (c) any search incident to the arrest becomes invalid thus rendering the evidence acquired as constitutionally inadmissible. (d) The voluntary submission of an accused to the jurisdiction of the court and his active participation during trial cures any defect or irregularity that may have attended an arrest. (e) The reason for this rule is that "the legality of an arrest affects only the jurisdiction of the court over the person of the accused.” Nevertheless, failure to timely object to the illegality of an arrest does not preclude an accused from questioning the admissibility of evidence seized. (Veridiano vs. People, G.R. No. 200370, June 7, 2017  Determination of the Existence of Probable Cause 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 In case of doubt on the existence of He may immediately dismiss the case probable cause, the judge may order the If he finds probable cause, he shall Prosecutor to present additional evidence if the evidence on record issue a warrant of arrest, or a clearly within 5 days from notice and the issue commitment order (Sec. 6, must be resolved by the court within 30 fails to establish probable Rule 112). cause. days from the filing of the complaint or information. DISTINCTION BETWEEN PROBABLE CAUSE OF PROSECUTOR FROM THAT OF A JUDGE Probable Cause as Probable Cause as determined by the determined by the Judge Prosecutor Purpose For the filing of an information For the issuance of warrant to in court by determining determine whether there is a whether there is reasonable necessity for placing the accused ground to believe that the under immediate custody in order accused is guilty of the offense not to frustrate the ends of charged and should be held for justice(P/Supt.Cruz v. Judge trial. Areola, A.M. No. RTJ-01-1642, March 6, 2002) Function Executive Function Judicial Function Basis Reasonable ground to believe The report and the supporting that a crime has been documents submitted by the committed. fiscal during the preliminary investigation and the supporting affidavits that may be required to be submitted.  BAIL – RULE 114 WHEN A MATTER OF RIGHT; EXCEPTIONS WHEN A MATTER OF DISCRETION Bail as a matter of right 1. Before or after conviction by the MeTC and MTC, and 2. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment (Sec. 4, Rule 114). 3. Before final conviction by all children in conflict with the law for an offense not punishable by reclusion perpetua or life imprisonment. Bail as a matter of discretion 1. Upon conviction by the RTC of an offense not punishable by death, reclusion or life imprisonment; 2. Regardless of the stage of the criminal prosecution, a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is not strong (Sec. 7, Rule 114); and 3. A child in conflict with the law charged with an offense punishable by death, reclusion perpetua or life imprisonment when evidence of guilt is not strong (Sec. 28, A.M. No. 02-1-18- SC).  REMINDER: The prosecution cannot adduce evidence for the denial of bail where it is a matter of right. However, where the grant of bail is discretionary, the prosecution may show proof to deny the bail. Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation. Recommendation is necessary because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant’s character and reputation, forfeiture of other bonds or whether he is a fugitive from justice. How should the term "punishable" under Sections 4 and 7 of Rule 114 be construed? The term "punishable" should refer to prescribed, not imposable, penalty. (People vs. Valdez and Sandiganbayan, G.R. Nos. 216007-09, December 8, 2015) Remedy of the accused when bail is discretionary When the bail is discretionary, the remedy of the accused is to file a petition for bail. Once a petition for bail is filed, the court is mandated to set a hearing. The purpose of the hearing is to give opportunity to the prosecution to prove that the evidence of guilt is strong. If strong, bail will be denied. If weak, the bail will be granted.  The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a petition for bail. (Serapio vs. Sandiganbayan, G.R. No. 148468, January 28, 2003) In cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. (Lavides vs. CA, G.R. No. 129670, Feb. 1, 2000) Duties of the trial judge if an application for bail is filed 1. Reasonably notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Sec. 18, Rule 114); 2. Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Secs. 7 and 8, Rule 114); 3. Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, A.M. No. 92-7-360-0, April 6, 1995); 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied (Sec. 19, Rule 114).  Indeed a person applying for admission to bail must be in custody of the law or otherwise deprived of his liberty. A person who has not submitted himself to the jurisdiction of the court has no right to invoke the processes of that court.  However, the court also held that “in adjudication of other reliefs sought by the accused, it requires neither jurisdiction over the person of the accused, nor custody of law over the body of the person”. (Miranda vs. Tuliao, GR No. 158763, March 31, 2006)  In the instant case, there is no dispute the petitioners were at large when they filed, through counsel, their Omnibus Motion Ex-Abundante Ad Cautelam (Motion to Quash Warrant of Arrest and to Fix Bail) wherein they asked the court to quash the warrant of arrest and fix the amount of the bail bond for their provisional release pending trial. However, albeit at large, it must be clarified that petitioners motion is not an application for bail. They were not applying for bail nor were they posting bail. (Padua, et al. vs. People, et al., G.R. No. 220913, February 4, 2019)  When bail is a matter of right, the fixing of bail is ministerial on the part of the trial judge even without the appearance of the accused. They must be admitted to bail as they are entitled to it as a matter of right. However, it must be further clarified that after the amount of bail has been fixed, petitioners, when posting the required bail, must be in the custody of the law. They must make their personal appearance in the posting of bail. It must be emphasized that bail, whether a matter of right or of discretion, cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender, or personal appearance. (Padua, et al. vs. People, et al., G.R. No. 220913, February 4, 2019)  APPLICATION NOT A BAR TO OBJECTIONS IN ILLEGAL ARREST; LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION An application for bail is not a bar to objections in illegal arrest or irregularity or lack of preliminary investigation, provided that he raises them before entering his plea. The court shall resolve the matter as early as possible, not later than the start of the trial on the case (Sec. 26, Rule 114).  Sec. 13, Art. II of the Constitution provides: 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. xxx xxx xxx “After conviction by the trial court the presumption of innocence terminates and, accordingly, the constitutional right to bail ends. From then on, the grant of bail is subject to judicial discretion. xxx xxx. This judicial disposition finds strong support in the history and evolution of the rules on bail and language of Section 5, Rule 114 0f the Rules of Court. xxx xxx xxx.” (Leviste vs. CA and People, G.R. No. 189122, March 17, 2010)  HOLD DEPARTURE ORDER AND BUREAU OF IMMIGRATION WATCHLIST Hold Departure Order (HDO) Order issued by the Secretary of Justice or the proper RTC commanding the Commissioner of the Bureau of Immigration to prevent the departure for abroad of Filipinos and/ or aliens named therein by including them in the Bureau’s Hold Departure List (DOJ Dept. Order No. 17). REMINDER: The proper court may issue an HDO or direct the Department of Foreign Affairs to cancel the passport of the accused. This is a case of a valid restriction on a person’s right to travel so that he may be dealt with in accordance with the law (Silverio v. C.A., G.R. No. 94284, April 8, 1991) Who may issue an HDO A hold departure order may be issued either by: 1. The RTC pursuant to SC Circular 39-97; 2. By the RTC sitting as a Family Court pursuant to A.M. No. 02-11- 12-SC; or 3. By the DOJ pursuant to Department Order No. 41. REMINDER: SC Circular 39-97 ( June 19, 1997), “limits the authority to issue HDO to the RTCs. Considering that only the RTC is mentioned in said Circular and by applying the rule on legal hermeneutics of express motion implied exclusion, courts lower than the RTC- such as the MeTC, MTC, MTCC and MCTC- has no authority to issue hold departure orders in criminal case (A.M. No. 99-9-141, November 25, 1999)  HDO when issued HDO shall be issued only in criminal cases within the exclusive jurisdiction of the RTCs (SC Circular 39-97) upon proper motion of the party. Whenever : (a) the accused has been acquitted; or (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the HDO issued. (OCA Circular No. 39-97 dated June 19, 1997)  RIGHTS OF THE ACCUSED - RULE 115 RIGHTS OF THE ACCUSED AT THE TRIAL 1. Right to be presumed innocent; 2. Right to be informed of the nature and the cause of the accusation against him; 3. Right to be present and defend in person and by counsel at every stage of the proceeding; 4. Right to counsel; 5. Right to testify as a witness in his own behalf; 6. Right against self-incrimination; 7. Right to confront and cross examine witnesses against him at trial; 8. Right to compulsory process; 9. Right to speedy, impartial and public trial; and 10. Right to appeal on all cases allowed by law and in the manner prescribed by law (Sec. 1, Rule 115) Scope of the right against self-incrimination RULE: The right covers only testimonial compulsion and not the compulsion to produce real and physical evidence using the body of the accused (Schmerber v. California, 384 US 757). XPNs: Immunity statutes such as: 1. Forfeiture of illegally obtained wealth (RA 1379) 2. Bribery and graft cases (RA749) (Herrera, 2007) REMINDER: The right against self-incrimination is available not only in criminal cases but also in government proceedings, civil, and administrative proceedings where there is a penal sanction involved. Duty of the trial court, public or private prosecutor, and the defense counsel to observe time limits Compliance with the following time limits in the prosecution of the case against a detained accused is required: 1. case shall be raffled and referred to the trial court within (3) days from the filing of the Information; 2. court shall arraign the accused within ten (10) days from the date of the raffle; 3. court shall hold the pre-trial conference within 30 days after arraignment or within ten (10) days if the accused is under preventive detention; provided however, that where the direct testimonies of the witnesses are to be presented through judicial affidavits, the court shall give the prosecution not more than twenty (20) days from arraignment within which to prepare and submit judicial affidavits in time for the pre-trial conference; 4. After the pre-trial conference , the court shall set the trial of the case in the pre-trial order not later than 30 days from the termination of the pre-trial conference; and 5. The court shall terminate the regular trial within one hundred 180 days, or the trial by judicial affidavits within 60 days, reckoned from the date the trial begins, minus the excluded delays or postponements specified in Rule 119 of the Rules of Court and the Speedy Trial Act of 1998 (Sec. 8, A.M. No. 12-11-2-SC). Denial of right to speedy trial a ground for dismissal The case against the detained accused may be dismissed on ground of denial of the right to speedy trial in the event of failure to observe the above time limits (Sec. 9, A.M. No. 12-11-2-SC).  Service of subpoena and notices through electronic mail or mobile phones. Subpoena and notices may be served by the court to parties and witnesses through electronic mails (e-mail) or through mobile phone either through phone calls or through short messaging service (SMS) (Sec. 11, A.M. No. 12-11-2-SC) RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf. 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means- telephone, radio, letter or messenger – with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun; 10.The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11. He must also be informed that any statement of evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence (People v. Mahinay, G.R. No. 122485, February 1, 1999). Requisites for the validity of an extrajudicial confession made by a person arrested, detained or under custodial investigation The following requisites must concur: 1. shall be in writing and signed by the person arrested, detained or under custodial investigation; 2. signed in the presence of his counsel or in the latter’s absence, upon a valid waiver and; 3. in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal Judge, district school supervisor, or priest or minister of the gospel as chosen by him (Sec. 2 (d),RA7438)  ARRAIGNMENT AND PLEA - RULE 116 ARRAIGNMENT AND PLEA It is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him (People v. Pangilinan, G.R. No. 171020, March 14, 2007). Arraignment is the proceeding in a criminal case, whose object is to fix the identity of the accused, to inform him of the charge and to give him an opportunity to plead, or to obtain from the accused his answer, in other words, his plea to the information.  8. Arraignment and Pre-trial xxx xxx xxx  (c) Waiver of the Reading of the Information- In multiple cases, the court, upon the full understanding and express consent of the accused and his/her counsel, which consent shall be expressly stated in both the minutes/certificate of arraignment and the order of arraignment. The court shall explain the waiver to the accused in the language or dialect known to him/her and ensure the accused’s full understanding of the consequences of the waiver before approving the same. (A.M. No. 15-06-10-SC; Revised Guidelines for Continuous Trial of Criminal Cases) WHEN MADE RULE: Arraignment must be made before start of the trial or before the prosecution presents its case. XPNs: Arraignment which was made after the prosecution rested its case was considered a non-prejudicial error under the following: 1. Counsel of the accused failed to object lack of arraignment during trial 2. Counsel of the accused had full opportunity to cross-examine witnesses. (People of the Phils. V. Atienza, G.R. No. L-3001, June 17, 1950; Pople of the Philippines v. Cabale, G.R. Nos. 73249-50, May 8, 1990) PROCEDURE OF ARRAIGNMENT 1. It must be in open court where the complaint or information has been filed or assigned for trial; 2. By the judge or clerk of court; 3. By furnishing the accused with a copy of the complaint or Information; 4. Reading it in a language or dialect known to the accused (People v. Albert G.R. No. 114001 December 11, 1995); 5. Asking accused whether he pleads guilty or not guilty (Sec. 1 (a), Rule 116); 6. Both arraignment and plea shall be made of record but failure to enter of record shall not affect the validity of the proceedings (Sec. 1 (b), Rule 116). May the accused enter a plea of guilty to a lower offense? A: Yes. 1. During arraignment a. If the offended party is present, the latter must consent with the prosecutor to the plea; and b. That the lesser offense is necessarily included in the offense charged;  2. After arraignment but before trial provided the following requisites are present: a. The plea of guilty is withdrawn; b. The plea of not guilty and the withdrawal of the previous guilty plea shall be made before trial; c. The lesser offense is necessarily included in the offense charged; and d. The plea must have the consent of the prosecutor and the offended party (Sec. 2, Rule 116). REMINDER: No amendment of complaint or information is necessary (Sec. 2). A conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of double jeopardy (People v. Magat,G.R. No. 130026, May 31, 2000) 3. After prosecution rests – Allowed only when the prosecution does not have sufficient evidence to establish guilt for the crime charged. WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE Provided that there is consent of the offended party and prosecutor to the plea of guilty to a lesser offense which is necessarily included in the offense charged. Effect of plea of guilty without consent of offended party and prosecutor If accused was convicted, the accused’s subsequent conviction of the crime charged would not place him in double jeopardy (Sec. 7 (c), Rule 117). NATURE OF PLEA BARGAINING  A defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather than accepting a plea of guilty, the prosecutor need not do so if he prefers to go to trial.  Under the present Rules, the acceptance of the offer to plead guilty is not a demandable right but depends on the consent of the offended party and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is necessarily included in the offense charged.  The reason for this is that the prosecutor has full control of the prosecution of criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on what the evidence on hand can sustain. (Estipona vs. Lobrigo, 837 SCRA 160 (2017) WHEN ALLOWED  Plea bargaining is allowed during the arraignment, the pre-trial or even up to the point when the prosecution already rested its case.  If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution rested its case, the Rules allow such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged.  The ruling on the motion must disclose the strength or weakness of the prosecution’s evidence. Absent any finding on the weight of the evidence on hand, the judge’s acceptance of the defendant’s change of plea is improper and irregular. ( Estipona vs. Lobrigo, 837 SCRA 160 (2017) GROUNDS FOR SUSPENSION OF ARRAIGNMENT Upon motion by the proper party on the following grounds: 1. accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto; 2. a valid prejudicial question; 3. A petition for review of the resolution of the prosecutor is pending at the Department of Justice or the Office of The President (Sec. 11, Rule 116), provided that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition; 4. There are pending incidents such as: a. Motion To Quash b. Motion for Inhibition c. Motion for Bill of Particulars REMINDER: The period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. (Sec. 11, Rule 116). After the expiration of said period, the trial court is bound to arraign the accused or to deny the motion to defer arraignment.  MOTION TO QUASH - RULE 117 It is a special pleading filed by the defendant before entering his plea, which hypothetically admits the truth of the facts spelled out in the complaint or information at the same time that it sets up a matter which, if duly proved, would preclude further proceedings. Period to file a motion to quash an information or complaint RULE: At any time before entering his plea, the accused may move to quash the information or complaint. (Sec. 1, Rule 117). XPN: Instances where a motion to quash may be filed after plea: 1. The facts charged do not constitute an offense; 2. Lack of jurisdiction over the offense charged; 3. The criminal action or liability has been extinguished; 4. Double jeopardy (Sec. 9, Rule 117) Grounds for a motion to quash the complaint or information 1. That the facts charged do not constitute an offense; 2. That the court trying the case has no jurisdiction over the offense charged; 3. That the court has no jurisdiction over the person of the accused 4. That the officer who filed the information had no authority to do so 5. That the information does not conform substantially to the prescribed form; 6. That more than one offense is charged except when a single punishment for various offense is prescribed by law; 7. That the criminal action or liability has been extinguished; 8. That it contains various averments which if true would constitute legal excuse or justification; 9. That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent (double jeopardy)(Sec. 3, Rule 117) REMINDER: The enumeration is exclusive. An order denying the motion to quash is merely interlocutory, and, therefore, not appealable.  “Here, aside from the bare and self serving Certification, there was no proof that ACP de la Cruz was authorized to file the Pabatid Sakdal or Information before the RTC himself. Records are bereft of any showing that the City Prosecutor of Makati had authorized ACP dela Cruz to do so by giving him prior written authority or by designating him as a division chief or review prosecutor of OCP-Makati. There is likewise nothing that would indicate that ACP dela Cruz sought the approval of either the City Prosecutor or any of those authorized pursuant to OCP-Makati Office Order No. 32 in filing the Pabatid Sakdal. Quite frankly, it is simply baffling how ACP dela Cruz was able to have the Pasiya (Resolution) approved by the designated review prosecutor SACP Hirang but failed to have the Pabatid Sakdal approved by the same person or any other authorized officer in OCP-Makati”. In conclusion, the CA erred in affirming the RTC’s dismissal of petitioner’s motion to quash as the Pabatid Sakdal or Information suffers from an incurable infirmity – that the officer who filed the same before the RTC had no authority to do so. Hence, the Pabatid Sakdal must be quashed, resulting in the dismissal of the criminal case against the petitioner. (Quisay vs. People, G.R. No. 216920, January 13, 2016)  For lack of such prior written authority, the inescapable result is that the court did not acquire jurisdiction over the case because there is a defect in the information. It is for the same reason that there is no point in compelling petitioner to undergo trial under a defective information that could never be the basis of valid conviction.  The case of People vs. Garfin firmly instructs that the filing of an information by an officer without the requisite authority to file the same constitutes a jurisdictional infirmity which cannot be cured by silence, waiver or acquiscence , or by express consent.  An information, when required by law to be filed by a public prosecuting officer, cannot be filed by another. The court does not acquire jurisdiction over the case because there is a defect in the information. There is no point in proceeding under a defective Information that could never be the basis of a valid conviction. (Villapando vs. Makati City Prosecution Office, Maximo and Panganiban, G.R. Nos. 214925 and 214965, April 26, 2016) Is the trial court divested of its jurisdiction over the person of the accused and over the offense charged if the information filed by the investigating prosecutor does not bear the IMPRIMATUR because of the absence on its face of both the word “approved” and the signature of the authorized officer such as the provincial , city or chief state prosecutor? It is sufficient for the validity of the Information or Complaint, as the case may be, that the RESOLUTION of the investigating prosecutor recommending for the filing of the same in court bears the imprimatur of the provincial, city or chief state prosecutor whose approval is required by Sec. 1 of R.A. No. 5180 and is adopted under Sec. 4, Rule 112 of the Rules of Court. Hence, Sec. 3 (d) , Rule 117, requiring a handling prosecutor to secure a prior written authority or approval from the provincial, city or chief state prosecutor before filing an Information with the courts, may be waived by the accused through silence, acquiescence, or failure to raise such ground during arraignment or before entering a plea. If, at all , such deficiency is merely FORMAL and can be cured at any stage of the proceedings in a criminal case. (Gina Villa Gomez vs. People, G. R. No. 216824, November 10, 2020) DISTINGUISH FROM DEMURRER TO EVIDENCE MOTION TO QUASH DEMURRER TO EVIDENCE Filed before the accused Filed after the prosecution has enters his plea. rested its case. Does not go into the merits Based upon the inadequacy of the of the case but is anchored evidence adduced by the on matters not directly prosecution in support of the related to the question of accusation. guilt or innocence of the accused. Governed by Rule 117 of the Governed by Rule 119 of the Rules Rules of Court of Court Does not require a prior May be filed by the accused either leave of court with leave or without leave of court DOUBLE JEOPARDY ("res judicata in prison grey”) To raise the defense of double jeopardy, three (3) requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first. Double jeopardy attaches only when the following elements concur: (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) a valid plea having been entered, and (5) the case was dismissed or otherwise terminated without the express consent of the accused. (Canceran v. People, G.R. No. 206442, July 1, 2015) "Thus, where the accused was charged with physical injuries and after conviction, the injured person dies, the charge for homicide against the same accused does not put him twice in jeopardy." Stated differently, where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and, together with the facts existing at the time, constitutes a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense. (People v. The City Court of Manila, Branch XI, et al., G.R. No. L- 36342, April 27, 1983) PROVISIONAL DISMISSAL Requisites of provisional dismissal 1. There must be a motion by the prosecution with the express conformity of the accused, or by the accused himself, or by both the prosecution and the accused for a provisional dismissal of the case; 2. The offended party is notified of the motion for a provisional dismissal of the case; 3. The court issues an order granting the motion and dismissing the case provisionally; 4. The public prosecutor is served with a copy of the order of provisional dismissal of the case (People v. Lacson, et al., G.R. No. 149453, April 1, 2003). REMINDER: The concept of provisional dismissal contemplates that the dismissal of the criminal action is not permanent and can be revived within the period set by the Rules of Court. Reckoning period of one or two year period for revival of criminal case The one of two year period allowed for reviving a criminal case that has been provisionally dismissed shall be reckoned from the issuance of the order of dismissal. The dismissal shall become automatically permanent if the case is not revived within the required period. Such permanent dismissal shall amount to an adjudication of the case on the merits (Sec. 14, A.M. No. 12-11-2-SC).  PRE-TRIAL - RULE 118 What is pre-trial? Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties and to take the trial of the cases out of the realm of surprise and maneuvering. It thus paves the way for a less cluttered trial and resolution of the case. (LCK Industries v. Planters Development Bank, G.R. No. 170606, November 23, 2007) MATTERS TO BE CONSIDERED DURING PRE-TRIAL 1. Plea bargaining; 2. Stipulation of facts; In order for the accused to be bound, it must be signed by him and his counsel. In Civil cases, however, there is no need to sign. 3. Marking for identification of evidence of parties; 4. Waiver of objections to admissibility of evidence; 5. Modification of the order of the trial if one of the accused admits the charge but interposes a lawful defense (reverse trial); and 6. Such other matters as will promote a fair and expeditious trial of the civil and criminal aspects of the case (Sec. 1, Rule 118). PRE-TRIAL AGREEMENT All agreements or admissions made or entered into during the pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used as evidence against the accused. (Sec. 2, Rule 118). PRE-TRIAL ORDER It is an order issued by the court reciting the actions taken, the facts stipulated and the evidence marked during the pre-trial conference (Sec. 4, Rule 118). Purpose and effect of the pre-trial order Such order shall bind the parties, limit the trial to those matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice (Sec. 5, Speedy Trial Act of 1998).  TRIAL – RULE 119 The examination before a competent tribunal according to the laws of the land, of facts put in issue in a case for the purpose of determining such issue.  RULE ON DEMURRER TO EVIDENCE How made 1. Court on its own initiative; or 2. Upon filing of the accused for demurrer of evidence. a. With leave of court; or b. Without leave of court. When made After the prosecution rests its case. Ground Insufficiency of evidence Effect The court may dismiss the case (Sec. 23, Rule 119). REMINDER: If the demurrer is sustained by the court, the order of dismissal is tantamount to an acquittal, hence it is NOT appealable as this would place the accused in double jeopardy. (Can it be a subject matter of a motion for reconsideration? No. (See Goodland vs. Co and Chan G.R. No. 196685, December 14, 2011 ) On the other hand, the order of denial of the demurrer to evidence is not reviewable by appeal or certiorari before judgment, unless the denial is attended by grave abuse of discretion, in which case such denial may be assailed through a petition for certiorari.  Demurrer WITH Leave of Court Demurrer WITHOUT Leave of Court If leave of court is denied, the accused may If demurrer to evidence is denied, it is proceed with presenting his evidence tantamount to a waiver of the accused’s right to present evidence and as a consequence the case will be submitted for judgment on the basis of the evidence for the prosecution. The motion for leave of court to file a If demurrer to evidence is consequentially demurrer to evidence shall specifically state granted, the case will be dismissed, and its grounds and shall be filed within a non- will result to an acquittal of the accused extendible period of 5 days after the (Goodland v. Co and Chan, G.R. No. prosecution rests its case. The 196685, December 14, 2011) prosecution may oppose the motion within a non-extendible period of 5 days from its NOTE : MUST READ ! receipt If leave of court is granted, the accused may file the demurrer to evidence within 10 days. The prosecution may however, oppose the demurrer to evidence within a non- extendible period of 10 days from the receipt of the demurrer (Sec. 23, Rule 119). When trial shall commence 1. After a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial. The trial shall commence within 30 days from receipt of pre-trial order (Sec. 1, Rule 119). 2. If the accused is to be tried again pursuant to an order of a new trial, the trial shall commence within 30 days from notice of the order granting a new trial (Sec. 5, Rule 119). REMINDER: Under Sec. 7 of the Rule 114, accused is entitled as a matter of right to at least two (2) days to prepare for trial. Denial of this right to prepare is reversible error; the proper remedy from a judgment of conviction under such case is appeal and not certiorari nor habeas corpus (Montilla v. Arellano, G.R. No. 123872, Jan. 30, 1998). INSTANCES WHEN PRESENCE OF THE ACCUSED REQUIRED BY LAW 1. Upon arraignment and in entering plea; 2. During trial when his presence is necessary for the purpose of identification; 3. Upon promulgation of judgment except for light offenses; 4. When the court with due notice requires so (People v. Joven De Grano, et al., G.R. No. 167710, June 5, 2009).  TIME LIMIT FOR THE TRIAL OF CRIMINAL CASES RULE: Trial shall not exceed 180 days from the first day of trial (Sec. 2, Rule 119). XPNs: 1. Those governed by the rules on summary procedure; 2. Those where the penalty prescribed by law does not exceed 6 months imprisonment or a fine of P1,000 or both; and 3. Those authorized by the Chief Justice of the SC (Sec. 6, RA 8493, Speedy Trial Act). REMINDER: Under Sec. 7 of the Rule 114, accused is entitled as a matter of right to at least two (2) days to prepare for trial. Denial of this right to prepare is reversible error; the proper remedy from a judgment of conviction under such case is appeal and not certiorari nor habeas corpus (Montilla v. Arellano, G.R. No. 123872, Jan. 30, 1998). Is taking of Deposition allowed in Criminal Cases? Examination of witness for the prosecution - When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination of the trial. xxx xxx xxx (Sec. 15, Rule 119) The condition of the private complainant (LI LUEN PING) being sick and of advanced age falls within the provision of Section 15, Rule 119 of the Rules of Court. However, said rule substantially provides that he should be conditionally examined before the court where the case is pending.  Thus, this court concludes that the language of Sec. 15, Rule 119 must be interpreted to present testimony at the hearing through live witnesses, whose demeanor and credibility can be evaluated by the judge presiding at the hearing, rather than by means of deposition. No where in the said rule permits the taking of deposition outside the Philippines whether the deponent is sick or not.  Certainly to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would not only deprive a detained accused of his right to attend the proceedings but also to deprive the trial judge of the opportunity to observe the prosecution witness deportment and properly assess his credibility, which is especially intolerable when the witness testimony is crucial to the prosecution ‘s case against the accused. (Go vs. People, G.R.No. 185527, July 18, 2012) May the testimony of a prosecution witness, who was convicted of drug trafficking and sentenced to death by the Indonesian Government and who is presently confined in a prison facility in Indonesia, be validly acquired through deposition by written interrogatories? Under Section 15 of Rule 119, in order for the testimony of the prosecution witness be taken before the court where the case is being heard, it must be shown that the said prosecution witness is either: (a) too sick or infirm to appear at the trial as directed by the order of the court, or; (b) has to leave the Philippines with no definite date of returning. The case of Mary Jane does not fall under either category. She is neither too sick nor infirm to appear at the trial nor has to leave the Philippines indefinitely. Her predicament does not in way pertain to a restriction in movement from one place to another but a deprivation of liberty thru detention in a foreign country with little or no hope of being saved from the extreme penalty of death by firing squad. The extraordinary factual circumstances surrounding the case of Mary Jane warrant the resort to Rule 23 of the Rules of Court Nowhere in the present Rules on Criminal Procedure does it state how a deposition, of a prosecution witness who is at the same time convicted of a grave offense by final judgment and imprisoned in a foreign jurisdiction, may be taken to perpetuate the testimony of such witness. The Rules, in particular, are silent as to how to take a testimony of a witness who is unable to testify in open court because he is imprisoned in another country. Depositions, however, are recognized under Rule 23 of the Rules on Civil Procedure. Although the rule on deposition by written interrogatories is inscribed under the said Rule, the Court holds that it may be applied suppletorily in criminal proceedings so long as there is compelling reason. In a catena of cases, the Supreme Court had relaxed the procedural rules by applying suppletorily certain provisions of the Rules on Civil Procedure in criminal proceedings. Verily, in light of the unusual circumstances surrounding the instant case, the Court sees no reason not to apply suppletorily the provisions of Rule 23 of the Rules on Civil Procedure in the interest of substantial justice and fairness. Hence, the taking of testimony of Mary Jane through a deposition by written interrogatories is in order. The deposition by written interrogatories is pursuant to her right to due process. (People v. Sergio and Lacanilao, G.R. No. 240053, October 9, 2019) REQUISITES FOR DISCHARGE OF THE ACCUSED TO BECOME A STATE WITNESS State witness He is one of two or more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the State (People v. Ferrer, G.R. No. 102062, March 14, 1996). Requisites before an accused may become a State witness 1. There is absolute necessity for the testimony of the accused whose discharge is requested; The discharge or exclusion of a co-accused from the information in order that he may be utilized as state witness is expedient that must be availed of only when there is absolute necessity for the testimony of the accused whose discharge is requested, and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution (People v. Borja, G.R. No. L-14327, January 30, 1960). 2. There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the said accused; It is essential, before a defendant is discharged from the information for the purpose of utilizing him as a witness for the government, that there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused (U.S. vs. Mandangan, 52 Phil. 62). 3. The testimony of said accused can be substantially corroborated in its material points; The testimony of the accused sought to be discharged must be susceptible of substantial corroboration in its material points. An example of this is where the testimony of the discharged witness was amply supported by the fact that various articles of the stolen property were found secreted in the place where he indicated them to be (U.S. vs. Mananquil, 25 Phil. 75). 4. Said accused does not appear to be the most guilty; and The discharged defendant need not be the least guilty; all the law requires, in order to discharge an accused to use him as a state witness, is that the defendant whose exclusion is requested does not appear to be the most guilty, not necessarily that he was the least guilty (People v. Faltado, 84 Phil. 89). 5. Said accused has not at any time been convicted of any offense involving moral turpitude (Sec. 17, Rule 119). Moral turpitude includes any act done contrary to justice, honesty, modesty or good morals. It is an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellowmen and to society in general contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS RULE: 1. Discharge of accused operates as an acquittal and bar to further prosecution for the same offense (Sec. 18, Rule 119); 2. Evidence adduced in support of the discharge shall automatically form part of the trial (People v. Feliciano, G.R. No. 136258, October 10, 2001); and 3. If the court denies the motion to discharge the accused as State witness, his sworn statement shall be inadmissible in evidence (People v. Feliciano, G.R. No. 136258, October 10, 2001). XPNs: 1. When the accused fails or refuses to testify against his co- accused in accordance with his sworn statement constituting the basis of his discharge (Sec. 18, Rule 119). 2. Failure to testify refers exclusively to defendant’s will or fault, 3. Where an accused who turns state’s evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him (People v. Beberino, G.R. No. L- 23213, October 28, 1977).  REMINDER: Discharge under this rule is only one of the modes to be a State witness. Other modes are: 1. The Witness Protection Program of RA 6981; 2. The power of the Ombudsman to grant immunity under Sec. 17, RA 6770; 3. Immunity under PD 749; 4. Immunity under EO 14-A; 5. Immunity under the Comprehensive Dangerous Drugs Act of 2002, RA 9165; and 6. Immunity and Protection under the Human Security Act of 2007, RA 9372.  JUDGMENT - RULE 120 CONTENTS OF JUDGMENT The judgment must state: 1. If of conviction a.Legal qualifications of the offense constituted by the acts committed by the accused, and the aggravating or mitigating circumstances attending its commission. b.Participation of the accused whether as principal, accomplice or accessory; c. Penalty imposed upon the accused; and d.Civil liability or damages caused by the wrongful act or omission unless a separate civil action has been reserved or waived (Sec. 2, Rule 120). 2. If of acquittal a. Whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt; and b. In either case, the judgment shall determine if the act or omission from which the liability might arise did not exist (Sec 2, Rule 120).  PROMULGATION OF JUDGMENT It is the official proclamation or announcement of judgment. It is promulgated by reading it in the presence of the accused and any judge of the court which it was rendered, or when the judgment is one of conviction for a light offense, in the presence of the defendant’s counsel or representative (Sec. 6, Rule 120). REMINDER: A judgment or sentence does not become a judgment or sentence in law until the same has been read or announced to the defendant or has become a part of the record of the court (U.S. vs. CFI of Manila, G.R. No. L-8195, February 14, 1913).  When is the reckoning period to count the 15 day period for purposes of appeal ?  Should it be from promulgation of Judgment or from receipt of the accused or counsel of a copy of the decision? Authority to promulgate the judgment RULE: The judge of the court who renders the judgment. XPNs: When: 1. The judge is absent or outside the province or city – Judgment may be promulgated by the clerk of court; and 2. Accused is confined or detained in another city - Judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement or detention (Sec. 6, Rule 120).  REMINDER: Where there is not merely physical absence of the judge who penned the decision, but the cessation or termination of his incumbency as such judge, there is no judgment validly entered in such a case (Ong Siu vs. Paredes, G.R. No. L-21638, July 26, 1966).  The presence in person of the accused at the promulgation of judgment is mandatory in all cases except where the conviction is for a light offense, in which case the accused may appear through counsel or representative.  The accused who failed to appear without justifiable cause shall lose the remedies available in the Rules against the judgment. However, within 15 days from promulgation of judgment , the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state in his motion the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within 15 days from notice. ( Pascua vs. CA, G.R.No. 140243, December 14, 2000)  Jurisprudence further dictates that the absence of counsel during the promulgation will not result in a violation of any substantial right of the accused, and will not affect the validity of the promulgation of judgment ( Gonzalez vs. Judge , 186 SCRA 101)  NEW TRIAL OR RECONSIDERATION – RULE 121 Motion for New Trial v. Motion for Reconsideration New Trial Reconsideration Rehearing of a case already May be filed in order to correct decided but before the errors of law or fact in the judgment of conviction therein judgment. It does not require rendered has become final, any further proceeding. whereby errors of law or