2002 Criminal Procedure Part 2 Copy

7/31/2019 2002 Criminal Procedure Part 2 Copy

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R E M E D I A L L A W ( C R I M I N A L P R O C E D U R E )R E V I E W E R - P A R T I I

A T E N E O C E N T R A L B A R O P E R A T I O N S 2 0 0 2

RULE 118 PRE-TRIAL

1. Pre-trial Conference is mandatory in criminal cases.

2. In such pre-trial, the following are considered:a. Plea bargainingb. Stipulation of factsc. Identification of evidenced. Waiver of objections to admissibility of evidencee. Modification of order of trial if accused admits the charge but interposeslawful defensef. Other matters which will promote a fair and expeditious trial

3. What are the requisites of pre-trial agreements and admissions (stipulation offacts)?

a. In writingb. Signed by the accused and counsel

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

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

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

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

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

RULE 119 TRIAL

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

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

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

4. The trial judge does not lose jurisdiction to try the case after the 180-day limit.

He may, however, be penalized with disciplinary sanctions for failure to observe theprescribed limit without proper authorization by the Supreme Court.

Trial in Absentia

1. Requisites of Trial in Absentia(if not present, theres denial of due process)a. The accused has been arraignedb. He has been notified of the trial

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c. His failure to appear is unjustified

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

3. What are the effects of trial in absentia? The accused waives the right topresent evidence and cross-examine the witnesses against him. (People vs.Landicho, 1996)

The accuseds waiver does not mean, however, that the prosecution is deprived of theright to require the presence of the accused for purposes of identification by thewitnesses which is vital for conviction of the accused, except where he unqualifiedlyadmits in open court after his arraignment that he is the person named as defendant inthe case on trial.

Exclusions in the Computation of Time

1. The following periods shall not be included in the computation of time oftrial:

a. Delay resulting from other proceedings concerning the accused includingbut not limited to:

i. Delay resulting from physical or mental examinationii. Delay resulting from other criminal proceedings against accusediii. Delay resulting from extraordinary remedies against interlocutory

ordersiv. Delay resulting from pre-trial proceedings provided not exceeding

30 daysv. Delay resulting from orders of inhibition or proceedings for change

of venuevi. Delay resulting from the existence of a prejudicial questionvii. Delay attributable to any period not exceeding 30 days and the

accused is under advisement

b. Delay resulting from absence or unavailability of an essential witness

c. Delay resulting from mental incompetence or physical inability of theaccused to stand trial

d. If the information is dismissed upon motion of the prosecution andthereafter a charge is filed against the accused for the same offense, any period

of delay from the date the charge was dismissed to the date the time limitationwould commence to run as to the subsequent charge had there been noprevious charge.

e. Reasonable period of delay when accused is joined for trial with co-accused

f. Delay resulting from continuance granted by the court motu propio

Factors for Granting Continuance

1. Whether the failure to grant continuance would make a continuation of the

proceeding impossible or result in a miscarriage of justice.

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

Time Limit Following an Order for New Trial

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General Rule:After an order for new trial is issued, the trial commences within30 days from notice of the order.

Exception: If the 30-day period becomes impractical due to unavailability of the

witnesses and other factors, it may be extended by the court but in no case should itexceed 180 days from notice of said order for new trial.

Public Attorneys Duties Where Accused is Imprisoned

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

2. The custodian will then inform the prisoner of the latters right to demand trial. Ifthe prisoner demands trial, the custodian should then inform the public attorney ofsuch demand.

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

Sanctions Imposed on Private Counsel, Public Attorney or the Prosecutor

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

necessary witness would be unavailable;

2. Files a motion solely for delay, knowing it to be frivolous and without merit;

3. Knowingly makes a false statement in order to obtain continuance;

4. Willfully fails to proceed to trial without justification.

The Sanctions:

1. Private Defense Counsel fine not exceeding P20, 000 + criminalsanctions, if any.

2. Counsel de officio, Public Attorney or Prosecutor fine not exceedingP5, 000 + criminal sanctions, if any.

3. Defense Counsel or Prosecutor denial of the right to practice beforethe court trying the case for a period not exceeding 30 days + criminalsanctions, if any.

The sanctions are designed to speed up the trial and disposition of the casesand to encourage the lawyers to go to court ready for trial and not ready topostpone.

Speedy Trial

1. The accused should be brought to trial within 30 days from the date the courtacquires jurisdiction over the person of the accused (Rule 116, Section 1g). If he isnot brought to trial within the period specified, he may quash the information on theground of denial of his right to speedy trial. Failure to move for dismissal prior to trialshall constitute a waiver of the right to dismiss under Section 9, Rule 120.

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

Order of Trial

1. Order of Trial

Prosecution presents evidence to prove the charge and, in the proper case, thecivil liability.

The accused presents evidence to prove his defense and damages, if any.

The prosecution, then the defense, may present rebuttal and sur-rebuttalevidence unless the court, in furtherance of justice, permits them to presentadditional evidence.

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

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

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

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

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

5. Due Process

The prosecution is entitled to due process. This means that it must beallowed to completely present its evidence.

Pervasive and prejudicial publicity may deprive an accused of his right to afair trial. To warrant such a finding, however, there must be allegation and proofthat the judge has been unduly influenced.

Judges must not only be impartial, but must also appear impartial. However,

this does not mean that the judge must remain passive during the proceedings.Its the judges prerogative and duty to ask clarificatory questions to ferret out thetruth.

6. Undue Interference

There is undue interference by the judge if he propounds questions to thewitnesses which will have the effect of or will tend to build or bolster the case forone of the parties.

Application for Examination of Witness for Accused Before Trial

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

Name and residence of the witness

Substance of his testimony

The witness is sick and cannot attend trial or he resides more than 100km from the place of trial and has no means to attend the same

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

Examination of Defense Witnesses

Deposition

Definition: Deposition is the testimony of a witness taken upon oralquestions or written interrogatories, in open court, but in pursuance of acommission to take testimony issued by a court, or under a general law or courtrule on the subject, and reduced to writing and duly authenticated, and intendedto be used in preparation and upon the trial of a civil or criminal prosecution.

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

checking and preventing perjury

ii. Provide an effective means of detecting and exposing false,fraudulent claims and defenses

iii. Make available in a simple, convenient and inexpensive way, factswhich otherwise could not be proved except with greater difficulty

iv. Educate the parties in advance of trial as to the real value of theirclaims and defenses thereby encouraging settlements

v. Expedite litigation

vi. Prevent delay

vii. Simplify and narrow the issues

viii. Expedite and facilitate both preparation and trial

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

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

Who should make the examination? The examination should be taken before a

judge or a member of the Bar in good standing so designated by the judge. Itmay also be made before an inferior court designated in the order of a superiorcourt.

Bail to Secure the Appearance of Material Witness

If the court is satisfied upon proof or oath that a material witness will nottestify when required, it may order the witness to post bail in such sum as maybe deemed proper. If the witness refuses to post bail, the court shall imprisonhim until he complies or is legally discharged after his testimony has been taken.

Examination of Witness for the Prosecution

1. The witness for the prosecution may be conditionally examined by the court wherethe case is pending if said witness is:

Too sick to appear at the trial; or

Has to leave the Philippines with no definite date of return.

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2. Such examination should be in the presence of the accused or in his absenceafter reasonable notice to attend the examination has been served on him.

3. Examination of child witnesses is tackled under the Rule on Examination of aChild Witness which took effect on December 15, 2000.

Joint Trial

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

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

3. The grant of separate trial rests in the sound discretion of the court and is not amatter of right to the accused, especially where it is sought after the presentation of

the evidence of the prosecution. In such separate trial, only the accused presentingevidence has to be present. And the evidence to be adduced by each accusedshould not be considered as evidence against the other accused.

State Witness

1. Requisites to be a state witness:a. Two or more persons are jointly charged with the commission of an offense

b. The application for discharge is filed by the prosecution before it rests itscase

c. Absolute necessity for the testimony of the accused

d. There is no other direct evidence available for the proper prosecution of theoffense

e. Testimony of the accused can be substantially corroborated in its materialpoints

f. Accused does not appear to be the most guilty

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

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

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

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

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

4. Two types of witness immunity

a. Transactional immunity witness can no longer be prosecuted for anyoffense whatsoever arising out of the act or transaction.

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b. Use-And-Derivative-Use-Immunity witness is only assured that his or herparticular testimony and evidence derived from it will not be used against him orher in a subsequent prosecution.

5. The discharge of an accused to be a state witness amounts to an acquittal and isa bar to future prosecution for the same offense.

Where an accused has been discharged to be utilized asstate witness and he thus testified, the fact that the discharge was erroneous asthe conditions for discharge were not complied with did not thereby nullify hisbeing precluded from re-inclusion in the information or from being charged anewfor the same offense or for an attempt or frustration thereof, or for crimesnecessarily included in or necessarily including those offense.

Mistake in Charging the Proper Offense

1. When, at any time before judgment, it becomes manifest that a mistake has beenmade in charging the proper offense and the accused cannot be convicted of theoffense charged or any other offense necessarily included therein, the said accusedshall not be discharged if there appears to be good cause to detain him.

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

Appointment of Acting Prosecutor

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

Exclusion of the Public

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

Consolidation of Trials of Related Offenses

1. Charges for offenses founded on the same facts or forming part of a series of

offenses or similar character may be tried jointly at the courts discretion.

2. The purpose of consolidation is to avoid multiplicity of suits, guard againstoppression or abuse, prevent delay, clear congested dockets, simplify the work ofthe trial court, and save unnecessary cost or expense; in short, the attainment of

justice with the least expense and vexation to the parties litigant.

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

Demurrer to Evidence

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

2. After the prosecution shall have rested its case, the case may be dismissed inany of the following manner:

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a. Court on its own initiative can dismiss the case after giving prosecutionopportunity to be heard

b. Accused files demurrer with or without leave of court

c. If the demurrer is denied:

With leave of court, accused can present his evidence

Without leave of court, accused waives right to present evidence

3. With or Without Leave of Court

With leave if the motion is denied, he can still presentevidence

Without leave if the motion is denied, he loses the right topresent evidence and the case will be deemed submitted for decision

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

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

Reopening of Case

At any time before finality of judgment of conviction, judge may, motu proprio or

upon motion, with hearing in either case reopen to avoid miscarriage of justice.

RULE 120 JUDGMENT

Judgment

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

2. Requisites:a. Written in official language

b. Personally and directly prepared by the judge

c. Signed by him

d. Contains clearly and distinctly a statement of the facts and the law uponwhich it is based

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

rescinded without prejudicing the rights of the accused. It has no legal forceand effect.

Article VIII, Section 14, par. 1 of the Constitution requires thatthe decisions of the court shall contain the facts and the law on which theyare based. The rationale is that the losing party is entitled to know why helost, so he may appeal to a higher court.

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

Contents of Judgment

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

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

3. The penalty imposed upon the accused

4. Civil liability or damages caused by the wrongful act to be recovered from theaccused by the offended party, if there is any, unless the enforcement of the civilliability by a separate civil action has been reserved or waived.

Acquittal and Dismissal

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

2. Acquittal vs. Dismissal

Acquittalis always based on the merits while in dismissal, there is terminationnot on the merits and no finding of guilt is made either because the court is not acourt of competent jurisdiction, or the evidence does not show that the offensewas committed within the territorial jurisdiction of the court, or the complaint orinformation is not valid or sufficient in form and in substance.

3. Dismissal may amount to a acquittal:

a. Here the dismissal is based on a demurrer to evidence

b. Where the dismissal is based on the denial of the right to a speedy trial

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

Judgment for Two or More Offenses

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

Variance Between Allegation and Proof

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

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

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3. An offense charged necessarily includes the offense provedwhen some of theessential elements or ingredients of the former constitute the latter.

4.An offense charged is necessarily included in the offense proved, when the

essential ingredients of the former constitute or form part of those constituting thelatter.

Promulgation of Judgment

1. Definition: Promulgation of judgment in criminal cases isthe reading of the judgment or sentence in the presence of the accused and the

judge of the court who rendered it.

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

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

4. Exception to the Mandatory Presence of the Accused:a. Where the conviction is for a light offense, in whichcase the accused may appear through counsel or representative

5. If judgment is one of conviction and the accused is absent without justifiablecause, the court shall order his arrest and he shall lose the remedies available in theRules against the judgment.

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

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

Modification of Judgment

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

2.General Rule: A judgment becomes final:a. after the lapse of the period for perfecting an appeal; or

b. when the sentence has been partially or totally satisfied or served; or

c. when the accused has waived in writing his right to appeal; or

d. accused has applied for probation.

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

Probation

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

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

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RULE 121 NEW TRIAL OR RECONSIDERATION

Filing of New Trial or Reconsideration

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

Grounds for New Trial

1. Errors of law or irregularities prejudicial to the substantial rights of theaccused

a. errors of law or irregularities committed during trial

b. errors/irregularities are prejudicial to the substantialrights of the accused

The following are not considered as irregularities:- Loss of records (remedy is reconstitution of missing evidence)

- Loss of stenographic notes (remedy is reconstruction of the testimony ofthe witness)

2. New and material evidence has been discovereda. evidence discovered after trial

b. evidence could not have been discovered andproduced at the trial even with the exercise of reasonable diligence

c. evidence is material and would probably changethe judgment if admitted

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

- Proposed testimonies of witnesses.

- Merely forgotten evidence.

Although the Rules of Court enumerates only the above two as the grounds fornew trial, the case ofNavarra vs. CA states that if the negligence or mistake of

counsel is so gross as to deprive the client of his right to due process of law, theaccused may be entitled to a new trial.

Grant of a New Trial is not Appealable; Relief

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

Grounds for Reconsideration

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

Form of Motion and Notice to Prosecutor

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

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d. Be given to the prosecutor

Effects of Granting a New Trial or Reconsideration

1. Original judgment shall be set aside.

2. The case shall be tried de novo and a new judgment be rendered accordingly.

3. When the new trial is granted on the ground of errors of law or irregularitiescommitted during trial, all proceedings and evidence affected thereby shall be setaside and taken anew. The court may allow introduction of additional evidence.

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

Erroneous Acquittal; Double Jeopardy Applies

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

RULE 122 APPEAL

Who may appeal

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

How to Appeal

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

To the CAWhen RTC exercised original jurisdiction:

1. File a Notice of Appeal with the RTC

3. Serve a copy of the notice upon the adverse party

When RTC exercised appellate jurisdiction:

- Follow Rule 42 on Petition for Review

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

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

SC1. where RTC imposes reclusion perpetua or life imprisonment

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

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

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

When appeal to be taken

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

Effect of appeal by any of several accused

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

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

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

Withdrawal of appeal

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

RULE 123 PROCEDURE IN THE MUNICIPAL TRIAL COURTS

1. General Rule

The procedure in the Regional Trial Court shall be applicable to theprocedure in Metropolitan Trial Courts, Municipal Trial Courts, and MunicipalCircuit Trial Court.

2. Exceptions Particular provision is made applicable only to such courts

In cases governed by the Rule on Summary ProcedureA) - criminal case where the penalty prescribed does not exceed 6 monthsimprisonment or a fine of P1,000 or both

B) - complaint or information filed directly in court without need of a priorpreliminary investigation or preliminary examination

C) - case decided based on affidavits submitted by the parties

RULE 124 PROCEDURE IN THE COURT OF APPEALS

Court of Appeals

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

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

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

Although not often done in the judicial system, the case ofPeople vs. Calayca statesthat the appellate court may reverse the trial courts decision on the basis of groundsother than those that the parties raised as errors.

Power of the Court of Appeals

The Court of Appeals may reverse, affirm, or modify the judgment; increase or

reduce the penalty imposed; remand the case for new trial or re-trial; or dismiss thecase. It is discretionary on its part whether or not to set a case for oral argument.

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

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

discovered evidence.Quorum and Voting of the Court of Appeals

Three Justices constitute a quorum for the sessions of a division

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

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

Accused Appellant

An accused-appellant may change his theory on appeal; thus the case opens thewhole action for review on any questioning including those not raised by the parties.

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

Upon the death of an accused pending appeal from his conviction, the criminal actionis extinguished, and the civil aspect instituted therewith for recovery of civil liability exdelicto is ipso facto extinguished. The other party may just file a separate civil caseagainst the estate of the accused who died.

Appointment of Counsel de Officio

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

1. He is appointed if it appears from the record of the case that:

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a. The accused is confined in prison,b. The accused is without counsel de parte on appeal, orc. The accused signed the notice of appeal himself.

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

Dismissal of Appeal for Abandonment or Failure to Prosecute

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

Groundsa. Appellant fails to file his brief within the time prescribed, except when he isrepresented by a counsel de oficio.

b. Appellant escapes from prison or confinement, jumps bail, or flees to a foreigncountry during pendency of the appeal.

Effect- Appealed judgment becomes final.

Judgment of the Court of Appeals/New Trial/Reconsideration

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

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

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

RULE 125 PROCEDURE IN THE SUPREME COURT

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

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

Automatic review

In all cases where death penalty is imposed by the trial court

Records shall be forwarded to the SC for automatic review and judgment

Ordinary appeal

Where penalty imposed is life imprisonment Applicable also where a lesser penalty is imposed but involving offensescommitted on the same occasion or arising out of the same occurrence thatgave rise to the more serious offense for which the penalty of death or lifeimprisonment is imposed

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

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Petition for review on certiorari

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

Exception: Criminal cases where penalty imposed is life imprisonmentor reclusion perpetua

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

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

5. When a criminal case is appealed to the SC, the whole case is then thrownopen for review

It becomes the duty of the SC to correct errors found in the judgment

appealed from

SC may correct errors whether they are made the subject of assignments orerror or not

6. Effect of appeal on the bail of the accused:

When accused is charged with offense which under the existing law at thetime of its commission and time of application for bail is punishable by aPENALTY LOWER THAN RECLUSION PERPETUA and is out on bail, and aftertrial is convicted by the trial court of the offense charges or of a lesser offensesthan that charged in the complaint or information, he is allowed to remain free

on his original bail pending the resolution of appeal unless the propercourt directs otherwise

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

When accused is charged with CAPITAL OFFENSE of an offense whichunder the law at the time of its commission and at the time of the application forbail is punishable by reclusion perpetua and is out on bail and after trial is

convicted by the trial court of the offense charged, -- bond is cancelled andaccused shall be placed in confinement pending resolution of his appeal

When, in criminal cases pending appeal before the SC, accused isstill on provisional liberty, the ff. rules are laid down:

i. Court shall order the bondsman to surrender the accused within 10days from notice, to the court of origin. Bondsman shall inform this court offact of surrender. Then the court shall cancel the bond;

ii. RTC shall order the transmittal of the accused to the National Bureauof Prisons thru the PNP as the accused shall remain under confinement

pending resolution of his appeal;

iii. If accused appellant is not surrendered within the aforesaid periodof ten (10) days, his bond shall be forfeited and an order of arrest shall beissued by this court.

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Appeal taken by the accused shall also be dismissed underSec. 8 Rule 124 of Rules of Court as he shall be deemed to have jumpedhis bail

REHEARING OF CRIMINAL CASE IN THE SUPREME COURT1. A case is reheard when the court en banc is equally divided in opinion or

necessary majority cannot be had.

2. If rehearing en banc no decision is reached, judgment of conviction of lowercourt shall be reversed and accused is acquitted.

If division of opinion or lack of required votes refers to the propriety ofimposing the death penalty, the penalty next lower in degree shall be imposed

RULE 126 SEARCH AND SEIZURE

1. Elements of a search warrant

An order in writing;

Signed by judge in the name of the People of the Philippines;

Commanding a peace officer to search for personal property; and

Bring it before the court

2. Nature of a search warrant

It is in the nature of criminal processes and may be invoked only infurtherance of public prosecutions

Have no relation to civil processes or trials

It is not available to individuals in the course of civil proceedings; it is notfor the maintenance of any private right.

It is INTERLOCUTORY in character it leaves something more to bedone, the determination of the guilt of the accused

General warrant:

A process which authorizes the search and seizure of things, in a generalmanner

This does not specify or describe with particularity the things searchedand seized

This kind of warrant is constitutionally objectionable therefore VOID

3. Object of a search warrant to obtain the goods, and bring the person in whosecustody they are found, either to be recognized as a witness or to be subject to such

further proceedings as the ends of justice may require

4. A search warrant must conform strictly to the requirements of theconstitutional and statutory provisions under which it is issued

Otherwise, it is VOID

The proceedings upon search warrants must be absolutely legal

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It will always be construed strictly without going the full length of requiringtechnical accuracy.

No presumptions of regularity are to be invoked in aid of the processwhen an officer undertakes to justify under it.

5. Search distinguished from seizure

Search

it is an examination of a mans house, buildings or other premises, or of hisperson, with a view of some evidence of guilt to be used in the prosecution ofa criminal action for some offense with which he is charged

Ordinarily implies a request by an officer of the law

Seizure

it is the physical taking of a thing into custody

Contemplates a forcible disposition of the owner

6. A good and practical rule of thumb to measure the nearness of time given inthe affidavit as to the date of the alleged offense, and the time of making theaffidavit The nearer the time at which the observation of the offense is alleged tohave been made, the more reasonable the conclusion of establishment of probablecause

7. PERSONAL PROPERTY TO BE SEIZED

A. Kinds of personal property to be seized:

Subject of the offense;

Proceeds or fruits of the offense; and The means used or intended to be used for committing an offense

Search warrants have been allowed to search for the ff:

Stolen goods

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

Implements of gaming and counterfeiting

Lottery tickets

Prohibited liquors kept for sale contrary to law

Obscene books and papers kept for sale or circulation

Powder and other explosive and dangerous materials so kept as to

endanger public safety Slot machines, being gambling devices

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

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

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

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

9. Requisites for the issuance of a valid search warrant

a. Probable cause

It is such facts and circumstances antecedent to the issuance ofthe warrant, that are in themselves sufficient to induce a cautious man to

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believe that the person against whom the search warrant is applied, hadcommitted, or is about to commit, a crime

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

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

Probable cause is determined in the light of the conditionsobtaining in given situations, but there is no general formula or fixed rule forthe determination of the existence of probable cause.

Existence depends of a large degree upon the finding or of theopinion of the judge conducting the examination.

b. Which must be determined personally by the judge himself, and not by theapplicant or any other person;

A judge may reverse his finding of probable cause, provided thatthe rectification is based on sound and valid grounds

This requirement does not extend to deportation proceedings(Morano vs. Vivo)

Immigration Commissioner has authority to determine probablecause ONLY for the purpose of issuing a warrant of arrest.

c. The judge must, before issuing the warrant, personally examine in the formof searching questions and answers, in writing and under oath, thecomplainant and any witness he may produce, on facts personally knownto them;

Application for a search warrant is heard ex-parte, there is neithera trial nor a part of the trial

Examination must be under oath and may not be in public

Examination of witnesses to determine probable cause:

Judge must examine witnesses personally Examination must be under oath; and

Examination must be reduced to writing in the form of searchingquestions and answers

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

d. The probable cause must be in connection with one specific offense;

This is to outlaw general warrants

Otherwise, this would place the sanctity of the domicile and theprivacy of communication and correspondence at the mercy of the whims,caprice or passion of peace officers.

e. The warrant issued must particularly describe the place to be searched andthe persons or things to be seized; and

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This requirement is sufficient if the officer to whom the warrant is directedis enabled to locate the same definitely and with certainty.

This does not require the true legal description to be given in a requiredform

The constitution requires that it be a description which particularly pointsto a definitely ascertainable place, so as to exclude all others.

The description must be so particular that the officer charged with theexecution of the warrant will be left with no discretion respecting the propertyto be taken.

It may be said that the person to be searched is particularly described inthe search warrant when his name is stated in the search warrant, or if nameis unknown, he is designated by words sufficient to enable the officer to

identify him without difficulty

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

10. If the officer follows the command of the warrant, he is protected, but if heexceeds the command, he is not protected by the warrant and he onlyassumes to act without process

If the officer acts within the command of his warrant, he is protected even if thecomplaint is proven to have been unfounded.

Obeying strictly the command of his warrant, he may break open outer or innerdoors, and his justification does not depend upon his discovering that for whichhe is to make the search

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

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

11. In searching a house, room or other premises, such shall be done in thepresence of a lawful occupant or any member of his family, or in the presenceof at least 2 witnesses of sufficient age and discretion, residing in the samelocality

The searching officer should also be considerate of the premises searched; heshould mar the premises as little as possible, and should carefully replaceanything he finds necessary to remove.

12. Warrant must be direct and served in the day time

Exception: if affidavit asserts that the property is on the person or in the placeordered to be searched here, warrant may be served anytime of the day ornight.

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

13. A warrant is valid for ten days from its date. After such time, it is VOID

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A search warrant cannot be used everyday for 10 days, and for a differentpurpose each day warrant used to seize one thing cannot be used as authorityto make another search

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

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

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

16. Searches incident to lawful arrest

This is the most important exception to the necessity for a search warrant

This right includes in both instances that of searching the person who is arrested,in order to find and seize the things connected with the crime as its fruits or asthe means by which it was committed

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

Search must be made at the place of the arrest and contemporaneous with the

arrest, otherwise it is not an incident to the arrest. In other words, a search is notincidental to the arrest unless the search is made at the place of arrest,contemporaneously with the arrest.

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

17. Other cases where warrantless searches and seizures are valid

Search of moving vehicles

Checkpoints are valid (Valmonte case)

Warrantless search of aircrafts as well as fishing vesselsbreaching our fishery laws

Consented search without a warrant

Seizure of evidence in plain view

Enforcement of custom laws

Exception: in a dwelling house

Vessel can be quickly moved out of the locality or jurisdictionin which the search warrant must be sought before such warrant could besecured

When search is based on probable cause under extraordinary circumstances

18. Unreasonable search and seizure is such where it is not authorized by statute,or where the conditions prescribed by the stature have not been met

What constitutes a reasonable or unreasonable search or seizure in anyparticular case is purely a judicial question

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Such is determinable from a consideration of the circumstances involved,including the ff:

The purpose of the search

Presence or absence of probable cause

Manner in which the search and seizure was made

Place or thing searched

Character of the articles procured.

Searches and seizure inside a home are presumptively unreasonable

Constitutional prohibition against unlawful searches and seizure applies as arestraint directed only against the government and its agencies tasked with the

enforcement of the law. It could thus only be invoked against the State.

19. The legality of a seizure can be contested only by the party whose rights havebeen impaired thereby

The objection to an unlawful search and seizure is purely personal and cannot beavailed by third parties

The remedy for questioning the validity of a search warrant can only be sought inthe court that issued it, not the sala of another judge of concurrent jurisdiction this is done through a motion to quash warrant of arrest

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

20. The Moncado Ruling, that illegally seized documents, papers and things areadmissible in evidence, is already ABANDONED

The exclusion of such evidence is the only practical means of enforcing theconstitutional injunction against unreasonable searches and seizures.

The Non-exclusionary rule is contrary to the letter and spirit of the prohibitionagainst unreasonable searches and seizures

21. Through RA No. 4200 or the Anti-Tapping Law, tapping of phone wires of thepremises of an accused, wherein persons accused of violation criminal lawsare engaged in conversation constitutes a violation of the Constitutionalprovision on the right of the people to secure in their persons, papers andeffects.

RA No. 4200 was approved on 19 June 1965

It also penalizes other acts similar to wire-tapping. Some similar acts are tapingor recording conversations of people, by others who are not authorized by theformer to record or tape.

RULE 127 PROVISIONAL REMEDIES IN CRIMINAL CASES

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

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2. The following are the provisional remedies under theRules of Court:

Attachment (Rule 57)

Injunction (Rule 58)

Receivership (Rule 59)

Delivery of personal property or Replevin(Rule 60) and

Support Pendente Lite (Rule 61)

3. Purpose of provisional remedies

Provisional remedies are applied pending litigation,

to secure the judgment or preserve the status quo

If provisional remedies are applied to afterjudgment, it is in order to preserve or dispose of the subject matter.

4. Although civil action is suspended until final judgment inthe criminal case, the court is not deprived of its authority to issue preliminaryand auxiliary writs which do not go into the merits of the case.

Preliminary writs and auxiliary writs referred to are those such as the ff:

Preliminary injunction

Attachment

Appointment of receiver

Fixing amounts of bonds

5. Attachment is a remedy afforded to the offended party tohave the property of the accused attached as security for the satisfaction of any

judgment that may be recovered from the accused

This remedy is available in the following cases:

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

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

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

When action is against a party guilty of fraud in contractingthe debt upon which action is brought, or in the performance of incurredobligation;

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

When the accused resides outside the Philippines

This may be filed at the commencement of a criminal action or at any timebefore entry of judgmentas security for the satisfaction of any judgment that maybe recovered in the aforementioned cases.

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

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