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7/27/2019 Criminal procedure lecture notes
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Criminal Procedure
2/5/13 - ARREST
-Before going to the Rules on Arrest i would
like to give the idea of CHECKPOINT.
- now in fact is a very good subject matter ofbar exams
- first & foremost not all checkpoints are
illegal offense
- the first case that drop out in the history of
our judicial system is the case of
BAGWANG VS DE VILLA.
- the determination of a probable cause
wherein conducting searches & seizures
under the Constitution it is lodge with the
judge under sec 2 art 2 - the right of everyperson against unreasonable arrest, search
& seizure,di ba, ok, kaya nga sabi ko nga
doon sa ano, well you can have a barong
barong house but the king of England
cannot enter, but all the forces of the king
of England cannot dare to enter the place.
Talaga napa ka sacred ng ating privacy to
be left alone.
- accdg to justice cruz it is a very delicate
policy to encourage the setting up a checkbecause you will be killed at will of the men
manning a checkpoint, as in the case of
Atimonan, but the majority decision,
checkpoint is a necessary measure to
protect the state and for the benefit of the
public as a measure of territorial defense.
- generally. checkpoint is considered as can
be deemed as in the case of Bagwang vs De
villa that, it is a security measure to enable
the police authorities to pursue its mission
of establishing an effective territorial
defense for the benefit of the public
PROVIDED that the vehicle is neither
searched nor its occupants subjected to
body search and the inspection of the
vehicle is merely visual, so that if you
happen to pass a checkpoint,they cannot
instruct you to open the trunk - its merely
visual.
- now question, since its visual what about
vehicles which are heavily tainted, can the
police men manning the checkpoint order
the driver to roll down his window? ANS:YES, if it is heavily tainted it cannot
effect a visual view on the vehicle & there
is a jurisprudence to support on that.
- Now, another thing to consider as ive said
checkpoint per se is not illegal in other
words, not all but it will be the setting up of
checkpoints should not base under the
circumstances, you cannot just set up a
checkpoint as a matter of policy.
- checkpoints are being set up by exigency ofthe circumstances because it is based on
that circumstances.
- when the election period commence on jan
13 there is a necessity to set up checkpoint
because it is an order from the COMELEC
deputizing the police authorities to set up
checkpoint in order to enforce the gun ban
law.
- now, as an EXCEPTION, the general rule is
you will set up a checkpoint as required bythe exigency of circumstances, provided its
merely routinary check & visual searched
as an exception to the general rule, you can
have an extensive search on the vehicle
provided the policemen have probable
cause to conduct an extensive search.
- probable cause- such facts & circumstances
which could lead a reasonable & prudent
mind to believe that an offense had been
committed & that the object sought in
connection with the offense are in the place
sought to be searched. ibig sabihin pag
duaman yung vehicle visual search in the
course of visual searched of the vehicle
nangangamoy, ang amoy ay hindi yung
usual pag ang tao ay hindi naka paligo
kundi amoy ng marijuana, with that given
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fact, can you do extensive search? ANS:
YES.because there is probable cause given
by the fact that there is a smell of marijuana
coupled if you see inside the vehicle a bag
halfway open & although wrapped in a
newspaper but there is something an odorwhich is distinct of that of marijuana. Is
there a circumstances telling to show that
there is probable cause to conduct an
extensive search? ANS: YES, and therefore
the vehicle can be totally search & the
policemen can inquire whats the contents
of that bag. If & when it turned up to be
marijuana then that could be subject to
seizure. WHY, because marijuana is a
dangerous drugs if the motorist could notpresent any authority, that is a prima facie
pre sumption that the posse ss ion of
marijuana is illegal. Can it be seized? ANS:
YES because that is an evidence of the
crime of illegal possession of marijuana
penalized under Art 9127. The GENERAL
RULE - is visual EXCEPTION - probable
cause to conduct a extensive search.
- People vs Diaz et al GR 141137 jan 20,
2004 .now in this case, the person involvedhere, & the y happen to pass by a
checkpoint & they disregarded the
checkpoint imbes na huminto tuloy tuloy,
that lead the policeman manning the
checkpoint to stop them & after they were
stop Diaz was having a backpack, in his
possession there emit an odor of marijuana
& because of that facts & circumstances
providing the policemen of evidence that a
crime was being committed in there
presence they can conduct an extensive
search. Now & remember class i am
emphasizing these yung pagconduct ng
search without warrant is an exception,
there ought to be an order from the court, a
warrant from the court for an extensive
search for the arrest of person, the general
rule there ought to be a warrant of arrest or
search warrant.
- now well another thing that you have to
consider in order of setting up of checkpoint
& the conduct of men manning the
checkpoint can be given the presumption ofthe regularity to the performance of their
official duty. you have to strictly observed
their SOPs (special operating procedures),
their manner. In the case of policemen-ito
ang tatandaan ninyo- that they should be in
proper uniform. pag nag gawa ng
checkpoint there not in proper uniform any
search could be question & even if there is a
contraband that would be seized in the
process & they are not in their properuniform, the uniform required here is the
GOA (General Office Attire) & not the
combat uniform or camouflage hindi yon,
although they are in uniform but not their
combat attire.
- another one, the checkpoint should be lead
by an official in case of At imonan
checkpoint, was it lead by an officer? ANS:
YES, by Col Marantan.
- another one to take note there ought to be asignage that there is a checkpoint, ex.
checkpoint on COMELEC for gun ban.
- In that signage the name of the team leader
should be conspicuously written.
- there should be a marked police vehicle.
what is a marked? alam ba ninyo yong
police vehicle- ito yong basic requirements
on the part of the police authorities.
- 10 REQUIREMENTS:
* checkpoints must be well lighted, properly
identified & manned by uniformed
personnel. upon approached, you have to
slow down, kasi kung nagbibilis ka, mabilis
ka & you disregard the checkpoint that is a
circumstance to have an initial suspicion
that there is something that you are hiding
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something. remember, upon approached,
slow down, pag ka gabi dim your
headlights. & turn on the cabin lights, sa
loob, wala ka naman tinatago, tapos never
step out of the vehicle.
* lock all doors of the vehicle during theinspection-since only visual inspection is
allowed.
* Never subject to physical & body search.
* Motorist are not being required to open the
load compar tment , t runk or back
compartment.
* be courteous, but firm to answer,assert your
rights, have a presence of mind when
answering.
*keep you drivers license & properregistration certificate.
* be ready to use your mobile phones at
anytime & dial an emergency numbers if in
case.
-Now for your information, what would be
the actuation of police authority if somebody
passing through a checkpoint commits traffic
violation: If you are flagged down by a
policeman, at the checkpoint for a trafficviolation, question will be - ito magandang
question ito sa finals- those motorist who
have been flagged down by policemen on
account of violation of traffic rules, are they
considered under arrest? or their act of
violating traffic rules constitute commission
of a crime in the presence of the police
enforcer? Halimbawa, nagmamaneho ka ng
motor at wala kang helmet is that a traffic rule
violation? Is there a traffic ordinance being
violated? IF you are caught violating & the
police officer will bring you the the police
station, is that proper? In traffic violation,
does not authorize policemen to placed you
under arrest,remember class, what is the
meaning of ARREST.
- ARREST is the taking of a person in the
custody of the law for purposes that he may
be bound to answer for the commission of an
offense.
-and another thing, if you are under arrest can
you be searched by the police who arrestedyou? ANS: YES, as in search incidental to
lawful arrest. Now, if you are not under arrest,
if its merely a violation of traffic rules,you are
not consider under arrest. the police should
only to stop you & their duty is that they
should only inquire something & will just ask
for the drivers license, then you will be
released & stopping you on account of traffic
violation does not constitute arrest.
- If it does not constitute arrest,then thepoliceman searched you? ANS: NO, but it
would be different if there could be a lawful
arrest, you can be search for dangerous
weapon & evidence in the commission of
the crime.
- anong justification, the RA 4136 (Land
Transportation & Traffic Rule).
- if they ask your drivers license, ibigay &
then you have to pay a corresponding fine
within 72 hours.- in lieu of confiscation of your license you
will be issued by a traffic citation ticket.
This traffic citation ticket will authorized
you to still drive within 72 hours.
- Now, if you will not pay the corresponding
fine that could be, sabi the failure of the
driver to settle his case within 15 days
from the date of apprehension will be come
to a suspension & revocation of license.
- what is the basis of checkpoint - its because
the deputization of policeman by the
COMELEC & the purpose is to ensure free,
orderly & peaceful election.
- Now, after election the City act of
checkpoint can be done, for example,
robberies are rampant, the city of Naga, in
order to portray the proliferation of the
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riding in tandem can the police force of the
city of naga can set up checkpoint? ANS:
YES, but not at all often without basis that
they can simply set up checkpoint by the
city of naga by their own caprice.
- well the prohibited acts of course, gun baneven though you are a licensee, if you dont
have a permit to carry from the COMELEC
pwede ka maaresto. kung wala kang
lisensya, naaresto ka, you can be charged ng
dalawang krimen violation of RA 66 as
amended and gun ban.
- can you be convicted of 2 offenses? ANS:
NO.
- but can you be charged of 2 offenses?
ANS:YES, the only thing there, there oughtto be a conviction first so that you cannot be
deemed prosecuted for illegal possession of
unlicensed firearm. so the most that you can
be convicted is the violation of gun ban- the
prescribed penalty is not less than 1 year &
not more than 6 years but the case of illegal
possession if it a high powered, medyo
mataas man ang penalty.
- now, are invitations by policemen constitute
an arrest? Is it illegal? ANS: NO,it is notunconstitutional.
- what is significant to know is that invitation
of a person subjecting to a custodial
investigation. If you were invited by a
policeman can it be considered you are
under custodial investigation? you are
invited in the police station for a police line
up, thus it constitute custodial investigation?
ANS: NO, because police line up is
authorized, since it does constitute custodial
investigation, why, because it is a general
inquiry.
- when is the person under custodial
investigation- when the investigation zeroes
in of his participation in the commission of
the crime. pag nag start ng question na
nililink ang isang tao in the commission of a
crime, that already constitute custodial
investigation & when a person is under
custodial investigation he must be afforded
of his rights, and what are these rights - his
Miranda rights and the counsel who is
needed to assist him in the investigationshould be not only competent but an
independent counsel of his own choice.
- it is different in the trial proper, its not a
strict requirement for the counsel which is
required under custodial investigation. the
strict requirement of the qualification of a
lawyer in court before the process of
custodial investigation is because its an
intimidating circumstances outside the court
the probability that the accused or thesuspected person might give uncounseled
statement.
- so invitations are not arrest.
- if under custodial investigation you should
be afforded of your rights under RA 7413 -
the rights of a person under custodial
investigation.
- what are the modes of effecting an arrest.
- 1. physical arrest
- 2. voluntary submission of the person to thecustody of the person making an arrest
-HOW DO YOU ARREST A PERSON- there
is a great significance, as ive said, a while
ago abut the proper arrest of a person because
if a person is not under arrest there is a big
difference as in the case of LarranagavsCA
287scra 581, if a person is not under arrest
under the exceptional circumstances
warranting a warrantless arrest you cannot
subject him to inquest proceedings because
you can only conduct an inquest proceedings
when a person was validly arrested under a
warrantless situation.
-an arrest signifies restraint on the person,
depriving one his own will & liberty, finding
him to become obedient to the will of the
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law. if you are not deprived of your liberty in
order for you to answer for the commission of
the offense you cannot be said under arrest.
-if you are not lawfully arrested you cannot be
searched incidental to that arrest.
-How does policeman arrest the person -under the Rules, there must be a warrant &
inform the person to be arrested of your
authority why you are arresting him, except of
course, kung tumakbo, the police officer
enforcing the warrant would arrest him first
then inform him why you arresting him.
- Take note that notoriety alone of the person
or the criminal to be arrested will not justify
the police officer to use unnecessary force.
- anong necessary force - it depend upon thecircumstances. there is no hard & fast rules
what is the necessary force to be enforced in
order to arrest the person.
- The police officer is a judge on how to
properly & reasonably arrest a person under
the circumstances, but unlike a civilian, a
private individual, the police officer should
stand ground, hindi dapat sya tatakbo if
there is some resistance hindi sya tatakbo
agad, the police should stand ground toarrest a person. kung hindi armed &
dangerous the person & does not resist do
not use your firearm, must use reasonable
force.
- jurisprudence says that police officer in the
performance of his duties must stand
ground.
2/7/2013
-What is that period mention in the Rules to
effect the arrest in 10 days?
- So if you will submit a report stating that the
accused cannot be located because he is not
there in his address & you have already
served it, now, is it require to submit the or
return the warrant of arrest? ANS: NO.
- What is required?
- What is an alias warrant?
- in the first place, the court will not issue a
warrant if the address is not known because
the Constitutional provision is very clear,
when you issue a warrant of arrest theparticular name of the street of a person,
place & the place to be seized, thats why,
otherwise it will be a general warrant.
- now, an alias warrant it refers to the
situation where the court has already issue a
warrant of arrest sometimes the police
officer would submit the report or return the
warrant issued by the court so that if they
surrender the copy of the warrant of arrest
then in which case the judge will see it onthe record &there is a statement that the
accused cannot be arrested & he cannot be
located in his given address so the court
mandated to archive the case & issue an
alias warrant.
- an alias warrant is what we call the warrant
of arrest which was issued for the 2nd time,
it is not the original warrant & that is why it
is called an alias warrant.
- so the subsequent warrant of arrest issue inlieu of original warrant of arrest that is what
we called an alias warrant.
- the warrant of arrest is effective until it is
served.
- the warrant should not be returned by the
arresting officer. all he has to do is submit a
report to the court within 10 days if you
cannot served it just report. (Reporting your
honor that until today i did not served the
warrant) the arresting officer can retain the
copy of the original warrant of arrest until
such time it is served.
- thats why when you will be ask the
distinction between the search warrant &
warrant of arrest, there is no such thing as
alias search warrant & the search warrant is
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likewise should be enforced within 10 days,
otherwise it ceases its validity.
- supposing it will be served after the
expiration what happen to the search - the
search would be illegal.
- supposing there will be a sizable quantity ofshabu & the search warrant was served after
its validity, it lapsed for a period of 1 day &
a report said that the stock is at the place
ought to be search & they proceeded the
search, what will happen to the search -it is
illegal, can you use the evidence - no, that is
what we called the fruit of the poisonous
tree.
- if you are a civilian effecting a warrantless
arrest what are procedure to be followed -you witness somebody killed another
person, can you arrest that person? Can you
recite the Miranda rights?
- that person should announce his intention
why he is arresting that person
- it is not the duty of the private person to say
the Miranda rights because they are not
trained when effecting an arrest. Its different
with the police officer, but if the private
citizen knows about the miranda warning,then that private citizen can say it. the basic
is that, when a private person knows that
somebody commits a crime he can effect an
arrest, but the duty belong to the police
officer. in fact it is institutionalized under
RA 7430.
- upon arrest the following must be
confiscated:
1. objects subject of the offense or intended
to use in the crime. objects which are the
fruits of the c r i m e - c e l l p h o n e p a g
cellphone ang ninakaw)
2. dangerous weapons
3. objects whose possession of which s illegal
per se
*These are what we called searched incidental
to a lawful arrest.
- what happen if there would be searched first
before arrest, is it correct? ANS:NO, first
there must be a valid warrantless arrest
- when can a person effect a valid warrantless
arrest: In his presence the person sought bearrested is actually committing a crime, has
been committed a crime & attempting to
commit a crime.
- in attempting to commit a crime is not in the
Rules before what has been wittten before
is about to commit a crime it was deleted
because it does have little significance, it
was attempting to commit because if there
was attempt there is already a penallty, its
one stage in the execution of a crime, sowhen a person commits to execute the
commission of a crime but did not pursue it
other than his continuous desistance. EX.
Pag kuha nya ng baril hindi pala nakalagay
ang magazine, instead ang nakalagay doon
Philippine Star, pagbaril nya, wala, but
theres already commencement of the crime.
Can you arrest him in your presence? YES.
there is already an attempt or an overt act to
commit the crime. it is the overt act that ispunishable.
- this is what we called in your presence when
a crime is committed & you effect an arrest
is called in FLAGRANTE DELICTO.
- other instance where you can effect a valid
warrantless arrest. Is when a crime has just
been committed & the person
- the word has just been committed is very
important because in order to effect a
warrantless arrest under paragraph B, the
crime has just been committed which is
related to some extent of immediacy and the
person has probable cause to believe based
on personal knowledge that the person to be
arrested has committed it.
- In flagrante delicto arrest the requisites
would be that we use your sense, that if can
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smell something that of marijuana, & youre
an expert on that, & at the distance, that
constitute if somebody is using marijuana,
& you smell at the distance....
- HOT PURSUIT - the crime has just been
committed & youre following up.- how about if 3 days has already elapsed or 1
week has elapsed can you still effect an
arrest? What is the standard time if which
you can effect an arrest in hot pursuit arrest?
first, in FLAGRANTE DELICTO ARREST
there ought to be a circumstances in which
either instances , as in sense of smell, when
you sense,for example a peculiar smell of
marijuana, even though at the distance, you
can effect the arrest because it is within thecontext that in fact the crime has been
committed in your presence. the case of
(People vs. Evaristo G.R. No. 93828, Dec.
11, 1992).
- FACTS: Peace officers while on patrol,
heard burst of gunfire & proceeded to
investigate in the house of appellant where
they were given permission to enter
accidentally discovering the firearm in the
latters possession. Accused-appellant foundguilty of illegal possession of firearms
contends that the seizure of the evidence is
inadmissible because it was not authorized
by a valid warrant.
ISSUE:
WON the evidence obtained without warrant
in an accidental discovery of the evidence is
admissible.
HELD: YES, the firearms seized was valid &
lawful for being incidental to a lawful arrest.
An offense was committed in the presence or
within the view of an officer, within the
meaning of the Rule authorizing an arrest
without a warrant.
- The requisites for a flagrante delicto arrest
should be the person sought to be arrested
must execute an overt act indicating that the
crime has just been committed, is actually
committing or is attempting to commit the
crime. such overt act is that, in the presence
or in the view of the arresting officer & if
we speak of probable cause - is such facts &circumstances indicating that the person to
be arrested is committing a crime, is actually
committing or the crime has just been
committed in order to effect a flagrante
arrest.
- in the case of HOT PURSUIT the crime has
just been committed it is not the matter of
time, there must be immediacy, but still it
depends on the circumstances.
- what is the condition - the condition is thatthere is no intervening period in the pursue
in effecting an arrest in hot pursuit from the
time of the commission of the crime, tuloy
tuloy (P vs. omar ) the arrest was happened
6 days after the commission of the crime, he
was arrested in Davao & the kidnapping
happened in Quezon City & yet the arrest is
still valid, REASON - from the moment the
police officer came to their personal
knowledge about the facts & circumstancesindicating that the person committed the
crime, tuloy tuloy an kanilang paghabol, &
there are facts & circumstances that give
them basis to arrest the person.
2/19/2013
- Somebody ask me if a person arrested,
under the rules can be search incidental to a
lawful arrest. Now, the question is, to what
extent will be that search should be
conducted, should be only limited on his
person or within the immediate vicinity, ito
yung mga tinatanong ng mga police officer.
- now, if you try to recall the case ofNolasco
vs. Pano she was arrested around 100m,
there was a warrant of arrest & the arrest
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took place around 50 to 100m from the
house & when she was arrested her house
was searched with seditious articles which
linked her with the NPA & there were papers
& effects which are evidence to proved that
she is a member of NPA or communistgroup & it planned to overthrow the
government, there was a question whether
those evidence seized from her house could
be use against her & could be justify under
search incidental to a lawful arrest.
- Karamihan tanong ng mga police, Sir to
what extent we can search a person
incidental to a lawful arrest. The rule is it
should be limited on his person.
- And what about his immediate vicinity, ithink so, for as long as the place where he
was arrested & it appears to be within his
vicinity & control.
- Now if a person arrested in her residence,
inside her residence can the police officer
search the entire house? for example, the
person was arrested in the living room, can
the police officer go to her bedroom to
search & seized evidence in connection with
the crime. The correct answer, it would belimited to his person & his immediate
vicinity. kasi, if it is only limited to his
person how about kung may tinago sya.
dont you think you can seized that
evidence? of course & the search incidental
to a lawful arrest - there should be a lawful
arrest first before search it cannot be
otherwise.
- Lawful arrest before search.
People vsHon Bonifacio SanzMaceda G.R.
No. 89591-96 Jan. 24, 2000
-Hon Sanz Maceda is the presiding judge of
the RTC of Antique & he is now in Las Pinas
- the accused is a lawyer & instead that he
should be incarcerated he was placed under
the custody of the trial court, question, is he
under detention, was he validly arrested
arrested & under detention?
- as we have said, when there is an effective
restraint of the liberty of the person he is
considered under arrest otherwise if he is
free & can do whatever rights & he is notunder restraint his liberty then we cannot
say that he is under arrest.
- Now, another thing is that he is placed under
custody for him in order to answer a
definite case otherwise it could be illegal
detention or arbitrary detention as the case
maybe.
- illegal detention there are private person
responsible for depriving his liberty
-he was involved in the killing of Evelio
Javier
-Now, accdg to the case the lawyers who filed
those cases of the validity of the 1973
Constitution.
- in connection with the circumstances with
the warranting a valid of warrantless arrest
such as flagrante delicto arrest & hot
pursuit arrest, & we have discussed search
incidental to a lawful arrest I think whateverquestion that might crop up you can
effectively answer.
- Another doctrine in connection with this is
search of evidence in plain view, plain view
it is seeing in distance, maliwanag, nakikita
mo, a particular evidence but it does end
there but there are requisites:
1) the law enforcer officer is in a position
where he has a clear view of a particular area
or prior justification of intrusion - when is
there a prompt prior justification of an
intrusion, for example, if a police officer is
armed with a search warrant & he enters the
house & implement the search warrant there
was a prior valid intrusion; what is that valid
prior intrusion - by virtue of a search warrant.
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- Now, the contents of the search warrant is to
search & seized drugs, dangerous drugs
such as shabu, & in the course o
implementation, nakakita sya ng baril, can
he seized it, ANS: YES, it can be justified
under the doctrine.2) said officer inadvertently comes across a
piece of incriminating evidence - hindi
naman yon ang purpose but as he continue
to search the house nakita nya sa cabinet
may baril ay ngayon pag wala kang
lisensya o hanapin mo saan ang lisensya
mo, at wala kang lisensya, so incriminating
evidence pero so you can seize.
3) in this immediately acquired by said
officer that the item seized maybe theevidence of the crime or contraband or
otherwise subject to seizure, like for
example, baril may gun ban ngayon kaya
its your duty to possess such license
without that its subject to seizure.
now, another rule that you have to take note -
search of moving vehicle doctrine - in this
case you dont have to secure a search
warrant, why, because of necessity. Movingvehicles of course, can quickly moved out
from one place to another, that is why this is
an exception to the general rule - that prior
to the search the law enforcement officer
should be armed by a search warrant. this is
born out of practical consideration. you can
just imagine, may nakita kayong contraband
& let us say, its very fast but take note that
although a search of moving vehicle as an
exception to the general rule, you can search
it, however, if the law enforcement officer has
still time to procure search warrant, sasabihin,
3 days from now may dadaan na particular
vehicle with plate no. ganito ganito fully
loaded with sacks of shabu although it is a
moving vehicle, because of your information
& you still have the time to procure a search
warrant then you need to go to court because
in the course of the evaluation of the
circumstances to justifying the seizure under
that law time will be considered by the court.
-Remember class, in terms of interpretation ofexception to the general it is always construed
against the government, against the law
enforcement authorities. So take note of the
time.
- the stop & frisk rule - how do we apply this
- well, when there are invitations that a
private person shows unusual conduct
suspicious conduct especially kung bulky
dito sa tagiliran, that would be an indicationna may baril dyan. can you apply this stop &
frisk rule doctrine? ANS: YES, do you need
probable cause - NO only unusual &
suspicious conduct but this doctrine is
search merely of outer clothing, hindi pwede
ipasok yong kamay mo sa kanyang bulsa,
lalo na sa underwear, baka ibang evidence
ang makita mo, assuming there is an
evidence.
-Another thing that you have to consider is
the consented warrantless search - usually ito
ang gingamit Pumayag eh kaya sinearch
namin for example, a moving vehicle with a
prior info that it has a seizable quantity of
marijuana placed at its back trunk now, you
cannot open it, you cannot order to open it &
search, sabi natin sa checkpoint dapat visual
lang. alam nyo sa magagaling na police
officers marunong sila makakuha ng consent,
yung kanilang power to persuade na anyway
kung wala ka talagang tinatago buksan mo
na yan yung likuran ng sasakyan mo kasi may
information kung voluntary that could be
justified under the consented warrantless
search.
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What are the Parameters for the court to
determine that the actuation of the consented
warrantless search is valid:
- whether consent to the search is in fact
voluntary is a question of fact to bedetermine from to the totality of all the
circumstances relevant to this determination
are the following characteristics of the
person giving consent by which consent is
given:
1. the age of the defendant or the suspect - if
it is a minor could say there is a valid
consent?ANS: hindi
2. whether the defendant was in a public orsecluded locat ion - the locat ion
consideration - kung in a secluded location
medyo hindi basta basta tanggapin ng
husgado, most likely the person is under
such an intimidating situation to give
consent. The interpretation of the court is
that there is no valid consent kasi in a
secluded location, kasi if in a public
location that would be different the court
will consider that there was a valid consentof the search.
3. whether the defendant objected to the
search or passively look on. for example,
nag object & definitely there was no
consent papaano kung passive lang sya-
wala syang reaction, basta tumingin lang
sya sige mag search kayo dyan - so there
could be no valid consented warrantless
search.
4. the education & intelligence of the
defendant - well kung no read no write na
defendant mukhang may question tayo in
respect to the consent given, the education
& intelligence of the defendant.
5. the presence of coercive police procedures
-
6. the defendants belief that no incriminating
evidence could be found - pag sinabi nyo
OK search mo ako wala naman dyan - so
there is a valid consent, the defendants
belief that no incriminating evidence could
be found.7. the nature of police questioning
8. the environment in which the questioning
took place.
9. the possibility that possibly vulnerable to
subjective state of the person consenting
- the case of Rodel luz vs CA, G.R. No.
197788, Feb 29, 2012 - I decided this case
here & I justified the search incidental to a
lawful arrest but the SC said, applying
doctrines in US there was no consentedvalid warrantless search. This case is about,
ganito nagmamaneho sya ng motor wala
syang helmet at napadaan sa isang station
dito, flag down eh malapit lang sa station
kinuha sya.Ngayon nong nasa loob na sya
ng p r es en t o t he accus ed behave
suspiciously, panay ang, so pinalabas kung
anong laman ng kanyang jacket at may isan
container ng binuksan ang laman shabu, at
hinuli sya at charge with illegal possession.ito ang mahirap tiningnan ko kung papaano
ma convict ito kasi madaling araw eh dahil
first before you search there must be a
lawful arrest. the classification ay the search
must incidental to a lawful arrest sabi ko he
was violating an ordinance not wearing the
helmet since he violated an ordinance he can
be searched incidental to a lawful arrest
punta sa CA sustained pagdating sa SC
reversed thats the beauty of stretching your
mind. tiningnan yong batas pag ikaw ay
hinuhuli ng traffic rules you are not said to
be placed under arrest the police officer
should take your license, confiscate your
license & issue citation ticket. when you are
temporarily hold for violation of traffic rules
you are not said to be under arrest &
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therefore you cannot be search incidental to
a lawful arrest. Ito yong isang argument ni
CJ.
- #2 - about consented warrantless search -
under that circumstances could there be a
consented warrantless search? sabi youcannot be justify, first nasa station sya, he is
in an intimidating situation, anong oras,
madaling araw, at wala syang kasama,
mahirap mapaniwalaan that it could be
justify under consented warrantless search.
pero both of us, the CA, were reversed by
the SC. we learned from how we interpret
the law & the facts but at least we achieved
our purpose the accused were not able to do
hi drug pushing activities.
-as additional readings - Posadas vs Hon.
Ombudsman G.R.No. 131492 Sep 29 2000 -
ang situation dito may mga eyewitnesses
pwede ba yong eyewitnesses of the
commission of the crime dadalhin ng police?
sino ba ang responsibility ng killing, alam mo
sir nakita namin. the crime happened usually
after 1 day, 2 days pero may eyewitnesses.
pwede ba yong eyewitnesses dadalhin paraumaresto ng tao said to be responsible in the
commission of the crime. sino ba ang
responsible, sila po, can the police officer
arrest that person? can it be justified under hot
pursuit arrest meron kang eyewitness. this
case of Posadas vs. Hon.Ombudsman, Roger
Posadas is the former University president of
UP, he is involve in the killing of Dennis
Ventura, the hazing case, they were charge for
obstruction of justice, they prevented the NBI
to arrest those students who were believed in
the hazing & killing of Ventura, and the
Ombudsman filed a case against them for
obstruction of justice & they filed a certiorari
case before the SC. So SC said hindi talaga
ma justify under hot pursuit arrest. First wala
silang personal knowledge, tinuturo lang, so
what should be done by the police officer if in
cases there are eyewitness ang gawin mo
dyan mag file ka ng kaso or mag apply ka ng
warrant of arrest pending filing of the
criminal case.
- another one this would help you to betterunderstand about Sec 5 of Rule 113
- the case ofSammyMalacatvs. CA G.R.No.
123595 Dec, People vs Tudtud G.R.No.
144037 Sept 26, 2003
- in Sammy Malacat case try to read the
separate opinion of CJustice Panganiban, he
summarize the related cases about the valid
warrantless arrest.
- People vs. Anthony Cuizon et al gr no.
109287 april 18,1996- Yung case ni People vs Tudtud this is about
the reliable information & in the course sa
checkpoint makikita dyan, halimbawa
mayroon isang supot sa loob ng sasakyan
pero hindi pa open naka close ang supot but
you have a prior information na may supot
na daladala na may shabu, pwede mo ba yan
ma search & seize? Kasi iba iba ang
decision ng SC eh, pero dito sa case na ito it
distinguishes kung kailan maka pag search& seize on the basis of reliable information
but the safest rule is that may reliable
information plus may overt act before you
can arrest & search. There must be a
probable cause which contemplates that
there must be an overt act to show that the
person sought to be arrested is committing a
crime in your presence or just committed an
offense.
- Now lastly that you have to take note in our
discussion of arrest - the right of the arrested
person to visitation by lawyer or relatives -
the right of the person arrested to confer
privately with a lawyer is absolute & it can
be demanded at anytime unlike with respect
to relatives regulated yan eh hindi at
anytime unlike in the case of lawyers
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talagang, the accused right to confer with his
lawyer privately is absolute.
- The failure to afford that would subject the
concerned police officer to administrative &
criminal prosecution.
- Now, in relation to that visitation, RA 7438 -this is an act defines certain rights of the
person arrested, detained or under custodial
investigation as well as the duties of the
arresting, detaining & investigating officer
& providing penalties for violations thereof.
- Take note class that there is a penalty of
imprisonment - a police officer who fails to
inform the Miranda Rights of the arrested or
detained person will subject to criminal
prosecution.- now, when is a person under custodial
investigation? Is police line up constitute
custodial investigation? ANS: NO, because
police line up involves general inquiry, but,
when is a person under custodial
investigation? when the investigation zeroes
in to his participation in the commission of
an offense, sa kanya naka focus that means
the person is under custodial investigation &
therefor his rights under RA 7438 will beobserved & should be observed.
- In respect to cases under inquest if the
arrested, lawfully arrested person who is
presented for inquest & in the course of the
inquest proceedings he manifested that he
wants to avail of his right to preliminary
investigation he is required to execute a
waiver under Art. 125 & in the execution of
the waiver he should be assisted by counsel
otherwise without the assistance of counsel
that waiver is null & void.
- Is invitation constitute an arrest?ANS: NO,
does it constitute custodial investigation?
YES, under RA 7438. Now, waiver of the
right to counsel should be done in writing &
with the assistance of counsel.
- And by the way, if a person is under
custodial investigation, his right is not only
a competent counsel but it should be
independent also. If the counsel is
competent only & is not independent there
is something irregularity in the observanceof the rights of the person arrested, detained
or under custodial investigation.
- Now, whats the purpose of custodial
investigation? Is it illegal? NO, hindi naman
mali or illegal kapag pasalitain ka kung ano
ang participation mo to extract the truth, it is
not illegal, what is illegal is you are
subjected to a coercive & intimidating
circumstances in which your statements are
taken without the presence of counsel.- The purpose of custodial investigation is of
course is to extract extrajudicial confession.
- But you know its ok, however in doing so
the rights of the person should be afforded
under that circumstances because while
there maybe a statements given voluntary if
it was assisted by a competent &
independent counsel of choice the
statements given while it is true, it cannot be
made in evidence against that person givingthat testimony.
- supposing in a crime of murder the accused
make an extra judicial confession can he be
convicted? If there are other evidence
showing his culpability in the crime of
charge of murder? aside from extra judicial
confession which was invalidly secure can
the accused be convicted? ANS: YES, as
long as there are other evidence, sabihin
natin, inadmissible yung extra judicial
confession if there are other evidence
proving that he is involved in the
commission of crime charge, he can be
convicted.
- But with respect to illegally obtained
extrajudicial confession it cannot used in
evidence in any proceedings whether
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administrative, civil or criminal because that
is also within the ambit what we call the
fruits of of the poisonous tree.
2/21/2013 - BAIL - Rule 114
- Can you tell us what is BAIL? Bail is given
for as a security or to guarantee the
appearance of a particular accused who is
charged of a criminal offense.
- What is the condition that the bail should be
granted to the accused?
- What the prerequisites in which bail is
granted to the accused? Can the court, for
example, a person is accused of homicide,
homicide is a bailable offense & that couldbe avail as a matter of right before
conviction.
- Now, in order that a person can be protected
under the threat of being arrested, that
person ---- to the court to apply for bail, will
the court, usually the recommended bail for
homicide is P40,000.00, you went to the
court to apply for bail for ---- will the court
process his application.
- we discussed extensively the distinctionbetween the jurisdiction over the person
accused & custody of the law. as we have
said, when we speak of jurisdiction the
court can acquire jurisdiction over the
person of the accused even if not appearing
before the court, mere filing a pleading the
court can already acquire jurisdiction over
that person except of course those cases
which we called those special appearance
cases.
- but in the case of application for bail it is
required that the accused should be under
the custody of the law not jurisdiction
because jurisdiction can be acquired through
filing a pleading.
- so in cases of application for for bail its a
must that the person or the accused should
be in the custody of the law.
- when is the accused under the custody of the
law - a person is in the custody of the law
when he has been either arrested or
otherwise deprived of his freedom or when
he has voluntarily submitted himself to thejurisdiction of the court by surrendering to
the proper authorities
- state the Constitutional provision of availing
bail. All persons except those charged with
offenses punishable with 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. The right to bail shall not
be impaired even when the privilege of thewrit of habeas corpus is suspended.
Excessive bail shall not be required. (Sec 13,
Art III, 1987 Constitution)
- so all persons except those charge with
offenses punishable by reclusion perpetua
- which is cumbersome life imprisonment or
reclusion perpetua - by, the way the basic
distinction between life imprisonment &
reclusion perpetua - 1.) in life imprisonment
are the penalties imposed on those offensespunished by special law whereas reclusion
perpetua refers to felonies under the RPC;
(2) in reclusion perpetua there are
accessories penalties & in life imprisonment
there is not. But the question which more
burdensome - reclusion perpetua or life
imprisonment? - Life imprisonment is more
burdensome because it no definite period
while reclusion perpetua is an an indivisible
penalty yet it has a legal duration of 20 yrs
& 1 day to 40 yrs. In life imprisonment there
is no legal duration.
- what is the rationale granting the bail to the
accused charged with an offense - the
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fundamental basis why the person facing
criminal charges is because of the
presumption of innocence & what you said
in respect to purposes in a meanwhile that
the accused held for trial when there is a
bailable offense it is inadherence to honorthe presumption of innocence of every
person charged.
- So the purposes of bail:
1.) to relieve an accused from the rigors of
imprisonment until his conviction & yet to
secure his appearance at the trial
2) to honor the presumption of innocence
until his guilt is proven beyond reasonable
doubt;
3) to enable him to prepare for his defensewithout being subject to punishment prior
to conviction;
- di ba papaano ka magkaroon ng wide livery
to look for your witnesses & to prepare for
your defenses if you are incarcerated. So if
it is a bailable offenses you should be
granted.
- Now, a person is charge with the crime of
homicide & after preliminary investigationthe prosecutor found probable cause &
accordingly he filed an information of
homicide against the accused before the trial
court in the information there is a line in the
bottom recommended bail P40,000.00. Now
here comes the accused he surrendered to
the court & at the same time he applied for
bail. Should the court set up the application
for hearing?
- Have you seen an information? - it is an
affidavit in writing prepared by the
prosecutor charging the persons of a
particular offense, there is a recommended
bail P40,000.00 which is the bail for
homicide. Now, the accused come to avail
under that circumstances , is the court set
that up for hearing? The person is under the
custody of the law by surrendering &
therefore being under the custody of the law
he can apply for bail. It should not be set for
hearing because there is a recommended bail
in the information.
- What is contemplated that there will be ahearing is when there is no recommended
bail because you have to apply the factors
obtaining to determine the appropriate
amount that you will placed for bail.
-When is bail excessive -
Yap vs CA, G.R.No. 141529 june 6, 2001 -
here the accused was charge of estafa & the
court imposed a bail of P5.5M under the
circumstances it is very obvious an excessivebail. You can just imagine stabbing somebody
& killed & the recommended bail is
P40,000.00 here, estafa is a property crime
the prescribed bail is P5.5M. SC said quoting
Justice Jackson granting that P5.5M as a
bail is a promise to the ear to be broken to the
hope, a teasing illusion like a munificent
bequest in a paupers will.
-If you will be ask is there an instance that thecourt can inquire a person who is not accused
in crime be required to post bail? The court
can require a witness to post bail in order to
secure his appearance even if he is not
indicted.
- What is your basis - Under Rule 119 Sec 14.
- another legal basis wherein a person who is
not yet charge in court can apply for bail,
his application for bail can be granted -
aside from witness, person who is not yet to
be charge - can he apply for bail? Sec 7 Rule
112 provides that before the complaint or
information is filed, the person arrested will
ask for a preliminary investigation in
accordance with the rule but he must signed
a waiver of the provisions under Art 125 of
RPC as amended in the presence of his
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counsel. Notwithstanding his waiver, he
may apply for bail while the investigation be
terminated within 15 days.
- What is contemplated in this provision - the
proceeding contemplated in this provision is
in cases where a person is subjected toinquest proceeding, in other words that
person who was lawfully arrested under
warrantless arrest under oath, so that if he
avail his right to preliminary investigation
he execute a waiver Art 125 & there will be
an investigation - no charge is filed before
the court in fact the inquest proceeding is
given 15 days to study the case whether
there is probable cause, but in the
meanwhile since he is still detained can heapply for bail even though he maybe charge
in the process? ANS: YES, because of Sec 7.
The rationale behind here is that once a
person is under the custody of the law he
has the right to bail except of course if he is
charge of a crime punishable by reclusion
perpetua or capital offense.
- in extra dit ion proceedin gs he is
immediately arrested & he is deprived of hisliberty, he may even be incarcerated,
question, can he apply for bail? Remember
in extradition proceedings there is no
criminal charge - so what is really the rule.
Can a person under extradition proceeding
& who is detained can he apply for bail?
ANS: YES he can because a person the
moment he is deprived of his liberty he can
apply for bail, the analogy here, if the
person under extradition proceeding can
apply for bail which is discretionary of the
Commissioner of Immigration there is no
reason why a person under extradition
proceeding cannot apply for bail when his
liberty has been restrained.
- The answer is that the person facing the
extradition proceeding when he is detained
he can apply for bail. Now, on the part of the
court what is the criteria to grant bail to a
person under extradition proceeding -
according to Justice Herrera citing CJ Puno,
that the evidence required in the application
in the grant of bail for person underextradition proceeding the quantum of proof
is CLEAR & CONVINCING EVIDENCE,
that evidence which is lower that proof
beyond reasonable doubt but higher than
preponderance of evidence. Clear &
convincing evidence that the applicant or the
person applying for bail in an extradition
proceeding is not a flight risk & will comply
all the orders & processes of the extradition
proceedings.- Before the court prior to the granting of bail
will require a condition that the accused be
arraigned first. The question is - is that
practice to require an arraignment is valid?
Ganito kasi ang court kung minsan gusto
lang makasiguro, OK arraign muna kita
bago i grant yung bail mo, bakit ganon ang
posture ng ibang ibang courts - dahil kung
ikaw ay ginrant bail na arraign ka na kahit
wala ka pwede ipatuloy ang kaso ito angsinasabi natin Trial in Absentia. The
exception of the case, the accused jump bail
he is not yet arraigned & after availing bail,
libre sya he jump bail, what happens to the
case he was not yet arraigned - ano ang
mangyayari sa case - may wisdom ito - na
prior to the arraignment or prior to the draft
for application for bail dapat ma arraign
may wisdom din yan, syempre kahit na sya
sumipot the court proceedings will not be
held hostage & it can proceed in absentia.
But why is it the SC said that is not valid -
Judge Lavides case, sabi ng SC mali yan
you can just imagine it is a requirement
before a person should be granted for bail
ma forfeit ang kanyang right to file a motion
to quash di ba, because motion to quash
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should be filed before arraignment
otherwise that right is considered waived,
except of course on the ground of lack of
jurisdiction.
- this also happens in the case of Serrapio vs
Sandiganbayan, the Sandiganbayan refusedto grant the bail without first having
arraigned.
- Requiring arraignment before grant of bail is
not valid.
2/26/2013
There are 4 forms of bail - corporate surety,
property bond, cash deposit, & recognizance.
- Determine how much bond is it is usually
stated in the information if it is a bailable
offense. Usually the information state how
much at the bottom of said information, for
example, homicide, there is a portion there,
bail recommended P40,000.00. now, when
the information contains already a
recommended bail there is no need for
hearing because it is already the prosecutor
who placed the recommended bail.- All the accused should do is, surrender to
the court so he would placed under the
custody of the law & then pay the
corresponding amount of the recommended
bail with undertaking with mug shots front,
left, right profile - this is required. The
affidavit of undertaking, that he would
appear when required by court, & that if in
case he fails to appear the case will proceed
in absentia & sometimes it is also required
where is the residence of the accused so that
in cases he is serve with the processes of the
court he can be located.
- With respect to corporate surety the bonding
company must be accredited first by the SC.
You cannot just simply go to a particular
bonding company & apply for personal bail
of the amount stated in the information. That
valid company should be accredited by the
SC, anyway it is just a matter of
administrative requirements. And the court
is very strict on that.
- What is the effect if the accused will presenta fake corporate surety? He can be arrested,
in case the court is mislead & granted with
an application on the basis of a fake
corporate surety.
- What is the difference between the filing of
the cash bond & surety bond - if you file a
cash bond that cash bond will be returned to
you no deduction nor interest unlike if you
will apply for a corporate surety bond there
is a corresponding fee or percentage & it isusually effective ----until for between you &
the loaner bond & you need to renew that. In
so far as the court is concerned, that
corporate surety bond is effective until
cancelled by the court.
- wala kang cash at wala ka naman pambayad
ng fee for the corporate surety you can use
the property bond. & the property bond, of
course, not necessarily under your name but
somebody could act as your bondsman asloaner for that particular property.
- But all you have to do once its approved you
need to registered it in the Registry of Deeds
otherwise within 10 days it will be
cancelled.
- Now if it is unregistered what will you do -
its the same process you have to register it
with the ROD plus caused the annotation &
the tax declaration of the said property in the
province or city where the property lies & it
should be done within 10 days otherwise the
court will cancel the property bond.
- Recognizance - is an obligation of record,
enter into before some court or magistrate
duly authorized to take it, with the condition
to do some particular act, the most usual
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condition in criminal cases being the
appearance of the accused for trial.
- surety of the state for the prosecution of the
principal are required.
- laymans term actually, somebody whether
there is guarantee for the court that heundertakes to produce & insure the presence
of the accused when required during the
trial. But not all cases that he can use this
form of bail - the recognizance - not all
cases.
- the husband of the mariners college,
managing officer of mariners college, Judge
Ampuan was a former Judge of Quezon City
& there was a case na constitute with Mayor
Lim, he was indicted for a crime in whichthe penalty exceeds 6 months & Mayor Lim
was trying to seek for the release of the
accused under recognizance. The crime -
the prescribe penalty of that crime is more
than 6 months, & Judge Ampuan declined
politely the request of Mayor Lim. Was
Judge Ampuan correct? He was correct in
declining the request because not all cases
can be subjected to recognizance by a
person. Usually its the politician whoundertake this recognizance. The politician
will go to the court Your honor i am willing
to constitute myself as a dealer & guaranty
the presence of the accused when required.
But under the Rules class, recognizance can
be avail for or maybe allowed in the
following instances:
(1) when the charge against the accused is for
violation of a municipal or city ordinance,
light felony & all criminal offense the
prescribe penalty of which is not higher
than 6 months imprisonment and /or fine
of P2,000.00 or both, provided that the
accused should es tabl ish to the
satisfaction of the court or any other
appropriate authority hearing his case that
he is unable to post the required cash or
bail bond. (RA 6036).
(2) When the accused has been in the custody
for the period of equal to or more than the
possible maximum imprisonment of the
crime charge to which he or she may be
sentenced. In the case of destierro if he isincarcerated for 30 days he can be
released after 30 days on recognizance.
Halimbawa, the crime is punishable by
arresto mayor, the penalty of arresto
mayor has a range of 30 days & 1 day to 6
months. Now, the accused has already
been on preventive detention for 6 months
can he released on recognizance?
ANS:YES. because he has already been
incarcerated for 6 months. kung destierroang prescribe penalty for cases of death
under exceptional circumstance wherein
the husband caught his wife in flagrante
delicto & he killed them while in the act
of making babies. You can kill both of
them & the prescribe penalty is destierro,
for purposes of protecting the accused
from the harm that the relatives of the
victims will bring to him.
- And if you will be ask whether somebodyhas been sentenced with destierro can
commit evasion of sentence? ANS: YES,
because destierro constitute also restriction
of your freedom or liberty so you can
commit the evasion of sentence.
(3) at the discretion of the court if the
accused has been in custody for a period
of equal to or more than the minimum of
the principal penalty prescribed for the
offense charged, without applying the
indeterminate sentence law or any
modifying circumstances.
(4) Under RA 9344 with respect to child 15
yrs old or below taking custody shall be
released to his parents, or guardian or in
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the absence of thereof the childs nearest
relative.
- if the parents, guardian or nearest relatives
cannot be located or they refused to take
custody, the child maybe released to any of
the following: the duly registered non-government organization, the barangay
official or a member of the barangay
counsel for the protection of the child, the
local social welfare & the devt officer or
where appropriate the dept. of DSWD.
- Now, class as much as possible when the
accused is a minor which we call the child
in conflict with law, the law provides that as
much as possible there should be an
alternative dispositions instead of detainingthem they should given to the care &
custody of his parents or govt. institution
which taking care of children & lately I
heard that Congress is planning that the age
of the criminal responsibility should be
reduced.
- there are so much objection now with
respect to the present law that the age of
criminal responsibility because at present 15
yrs & below is totally exempt, above 15 butbelow 18 depending whether the child in
conflict with law acted with discernment -
whether he knows what is right or wrong.
- What are the conditions of bail? Well in Sec
2 clearly stated but just to simplify it
actually to guaranty the penance of the
accused in all the stages of the trial &
becomes effective upon approval of the
court.
- Well finding the application for bail
sufficient in required & substance - the
judge approved. The dealer of the accused is
directed to release the accused until further
orders & then of course the undertaking
would be he should appear in those
instances under the rules in which the
accused is required to appear before the
court.
- in the issuance of a bench warrant - it is only
that court that issued it that can revoke it, it
cannot be interfered by other court and even
in an ordinary case when the case is filed fora particular accused & he is at large, let us
say, a case of homicide was filed before
RTC Naga but the accused cannot be located
his given address in Naga & he was found in
Manila, Can he apply for bail in Manila?
ANS: YES, because accdg to the rules he
can apply bail to the place where he was
arrested.
- Now, but in he case of bench warrant - it
cannot be interfered by other court it is onlythat court that issued the bench warrant who
can make any disposition of the warrant.
- In all stages, by the way tatanungin ko
sainyo sa finals - In what stages or instances
wherein the appearance of the accused is
required by the Rules: It should be
personally done by the accused himself. So
during arraignment. What else - during
promulgati on - fo r the purposes of
identifying the accused.- But there ought to be an order from the
court that his presence is required to be
present for purposes of identification - there
must be an order. ( you are hereby directed
to appear on this particular date for trial )
- During the arraignment you must be present,
in promulgation class, if that is only light
offenses promulgation can be done in
absentia by the accused provided, his lawyer
is present.
- but in cas es bef ore the RTC, can
promulgation proceed without the presence
of the accused ? ordinarily the accused
should appear during promulgation but in
instances where the accused has been duly
notified & needed to appear during the
promulgation, can the court proceed with
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the promulgation? ANS: If duly notified
pwede.
- How it is done? ANS: It is done by
recording the judgment in the criminal
docket of the court & serving the copy of
the decision to the accused at his lastknown address & also his counsel - thats
how you promulgate in absentia.
- But you there were an instance that
happened in Baguio a judge got angry
because the accused was not present when
his decision was about to be promulgate it
was only the counsel of the accused who
appear. Now, the case was called & the
accused was conspicuously absent it was
only the lawyer who appear & the judge askwhere is the accused Your honor I tried to
contact the accused but I cannot locate him
according to the judge Lets proceed with
the promulgation & Atty so & so do not sit
down you remain standing, OK Branch
Clerk promulgate the decision, of course the
lawyer pleaded to the court Your honor can
I take my seat? No you remain standing
thats how promulgation should be done, but
the counsel really pleaded to the courtbecause according to him he was not the
accused if he stand up katawatawa sya eh
para sya na ang akusado, but the judge did
not mind his pleadings so napilitan na yung
abogado, at lahat na mga present during the
presentation during the trial ay nakatingin sa
kanya as if sya ang na convict at convicted.
TAMA BA YONG GINAWA NG JUDGE ?
Right after the promulgation he filed a
complaint, an administrative complaint sabi
nya grabe pinahiya sya eh those are one of
the cases which accused were filed against
the judge & unfortunately the judge was
dismissed by the SC. of course not only in
that incident but other several incidents. You
know of the accused is not present you can
proceed promulgation in absentia - its not
how you do it - you are hereby ordered
considering the accused is not present Let
this decision be promulgated by recording to
the criminal docket & serving a copy to the
accused at his last known address & to his
counsel.- Take note class that there should no
movement of prisoners in the detention cell
without the court order otherwise, may
malilintikan dyan sa jail warden.
- Lately, in the new drug case in Cavite, the
accused was rescued by the syndicate yung
mga robbery...I was the one who filed the
case, I was surprised na hindi pa yon tapos.
because when i left that case there was an
appointment by the judiciary, halos pataposna yung prosecution eh. Its about a drug
laboratory. Kaya dapat maingat ka doon that
you just cannot simply transfer an accused
from their detention cell without the court
order, even if the accused is suffering an
ailment unless it is an emergency case the
jail warden has no authority to bring the
accused to the hospital. the jail warden
should ask permission of the court. This is
specifically provided under Sec 3.
- Now, ito na ang pinaka importante that you
need to consider in BAIL - WHEN BAIL IS
A MATTER OF RIGHT & WHEN BAIL IS
A MATTER OF DISCRETION.
- Sec 4 & Sec 5 is very basic cases of course
cases from MTC before & after conviction
bail is a matter of right.
- when we speak of AS a matter of right the
court has no discretion kung hindi i grant
yan otherwise if the court exercise excessive
discretion grave abuse of discretion yon
kaya nga a matter of right. The court is not
required to exercise discretion it cannot
afford to exercise discretion if the court
exercise discretion in cases bail a matter of
right thats grave abuse of discretion.
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- & before & after, yung cases ng kahit na
convict na, for example an offense the
prescribed penalty is presion mayor, before
conviction pwede mag bail, after conviction,
convicted na sya pwede mag bail as a matter
of right.- Now, of course before conviction, cases
within the jurisdiction of RTC, not
punishable by reclusion perpetua, by death,
life imprisonment - a matter of right yan.
- Now, after that, the judgment of conviction
by the RTC in cases of an offense not
punishable by death,reclusion perpetua or
life imprisonment,the nature of bail becomes
discretion.
- what about if the crime is a non bailableoffense, non bailable offense before you can
be granted the bail there ought to be a
hearing in the process of evaluation of the
evidence presented by the prosecution
during the trial wala naman qualifying
circumstance that would raise the killing to
murder sinabi lang ng court this is not a case
of murder but a case of homicide. Ngayon
can the accused apply for bail? YES,
because thats a matter of discretion & whoask on that note. Supposing that the
application is filed in court in the RTC that
convicted accused can the RTC that
convicted the accused can process the
affidavit? ANS: YES, for purposes of
transmittal to the CA in case if there is an
appeal.
- What happens if the accused is convicted in
which the prescribed penalty is more than 6
yrs but not more than 20 yrs, well the
accused can be granted on the same bail
subject to the consent of a bondsman, &
without the presence of 5 mitigating
circumstance like repeat offender ay hindi
na pupwede.
- The Rule is in cases of conviction like
murder, it is non bailable, in case of Leviste
he was only convicted of homicide instead
of murder ngayon nag apply sya ng bail sa
CA, sabi nya medyo masama ang
pakiramdam ko, I know bail in this case is a
matter of discretion since I have a valid
justification to grant bail for me on accountof his health pwede, mag grant ang aking
application for bail. You know class, sabi ng
SC pag ang akusado ay convicted kailangan
mas mataas ang antas ng pag process, did
the court should exercise a discriminating
view as much as possible if it cannot justify
the reasons for the grant of bail it should be
denied.
- But in cases of the presence of 5 mitigating
circumstances talaga no bail should beallowed.
- And what are these 5 mi t ig at ing
circumstances:
1) repeat offenders, recidivist, quasi recidivist
or habitual delinquent or commission of
crime aggravated by the circumstances of
reiteracion.
2) Previous escape from legal confinement,
evasion of sentence or violation of the
condi t ions of bai l wi thout val idjustification.
3) Commission of an offense while on
probation, parole or under conditional
pardon.
4) Circumstances of the accused or his case
indicates the probability of flight if
released on bail
5) Undue risk of commission of another
crime by the accused during pendency of
appeal.
- After conviction if the accused apply for
bail, the prescribe penalty is 6 yrs & 1 &
there are presence of these 5 mitigating
circumstance the bail should be denied &
should be provided with notice to the
accused & a hearing should be conducted to
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determine the presence of these 5 mitigating
circumstances.
- You will notice we still have what we call
the capital offense, for purposes of
discussion, remember class in our criminal
statute, the RPC, still the penalty of deathremains in our criminal statute, for example,
murder - what is the prescribe penalty for
murder - reclusion perpetua to death, in case
of qualified rape when the victim died & the
commission of rape was attended with the
use of bladed instrument or weapon, thats a
qualified rape & when the victim became
insane - thats qualified rape, so the
prescribed penalty is still reclusion perpetua
to death.- Now question, do we have still what we call
capital offense? ANS: YES, but the court
cannot imposed for that prescribe penalty
for that capital offense due to the enactment
of RA 9346 - An act prohibiting the
imposition of death penalty in the Phil,
which was promulgated on June 24, 2000.
- While capital offense remains in the
criminal statute, still we cannot avoid
talking about capital offense, but was hasbeen removed here is the imposition of the
penalty of death. There was no abolition or
specific amendment, only prohibition of the
death penalty.
- Technically there is no capital offense
because we cannot imposed the death
penalty in view of RA 9346, however death
penalty as a penalty still remains in the
statute.
3/5/2013 RIGHT OF THE ACCUSED
Right to Counsel
- To briefly emphasize the right to counsel,
the difference between the right to counsel
in custodial investigation & during trial - in
custodial investigation you need a
competent & independent counsel, in the
trial you just need an effective counsel
because the danger that the counsel in the
voluntary statement that he made is
removed, as a matter of fact the counsel in
the course of trial, his obligation to tell hisclient to tell the truth, kung sasabihin na
atty. aamin na ako kasi ginawa ko talaga
eh, can you prevent him? The rule of the
lawyer is not to prevent the accused who
wants to plead guilty.
- As counsel it is your duty to tell the truth.
- The right to counsel during the trial - what
you need is an effective counsel. An
effective counsel does not prevent you from
telling the truth & to plead guilty to theoffense charge.
- The right to counsel is not an absolute right
& can be waived & the accused can
represent himself.
- During the trial there are questions during
cross that the accused maybe subjected to a
criminal prosecution, the accused can
invoke his right to remain silent. He can
invoke it at anytime & it could not be taken
against him. However, his mere silence isthat effective but his failure to present
evidence that could definitely affect his
defense, can you just imagine if he does not
present any evidence in his favor that the
court will rely only on the evidence of the
prosecution, so most likely the accused can
be convicted unless the evidence presented
by the prosecution is requiring quantum of
proof to prove the guilt of the accused
beyond reasonable ground.
- Another right of the accused is to be
exempt from being compelled to a witness
against himself - in the course of the trial
the objection that you can make is
objection your honor the accused may
interpose that the accused should not
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answer that because the accused is invoking
his right against self-incrimination . Well
what is contemplated here is actually the
exercise of intelligence. If it is only
mechanical like lifting up your shirt to
determine whether you have a tattoo on yourchest, any objection to that cannot be
sustained because it does not account to
compulsion as it would not exercise
intelligence.
- But in the prosecution of falsification of
public documents, if the accused will be
required to write down his signature, writing
his signature would entail the exercise of his
intelligence thus the accused properly &
interposed an objection against this tightagainst self-incrimination.
- Your right to be exempt from being
compelled to be a witness against himself.
Imagine if you will allow that scene,
papirmahin mo sya, & it is strikingly similar
to the falsified document the accused would
be convicted of the crime charged. So if you
were the counsel you have to be alert to
invoke that right from being compelled to be
a witness against yourself let the prosecutionprove its case.
- Actually the trend now in SC is allowing the
DNA test, as a matter of fact a lot of cases
which were dismissed & the accused were
acquitted because of the result of the DNA
test, as in the case of Webb they were
invoking lets look up the specimen that you
gathered & compare to our sperm if it could
match. eh hindi pig present ng prosecution
so kung may sinasabi na there is a
spermatozoa in the remains of the private
parts & then you are very sure that it is not
your sperm you better avail this DNA test.
- The Right To Confront the Witnesses well
usually this happens when the witness is
presented, you have to cross examine to
test the credibility of the witness, so cross
examination is the tool to determine whether
a particular witness is telling the truth or not
thats why this right to cross examination to
confront witness is a very important right of
the accused.- there are instances that you cannot anymore
cross examine the witness because he could
no longer found, the witness is already 6
feet under, so you cannot excavate his grave
& bring him to the court to testify, but class,
in the event that said witness who could no
longer be found whether he is abroad or
already dead, the testimony that he give in
another proceedings invoking the same
parties in which the other party was giventhe opportunity to cross examine that
testimony can be utilized.
- How do you do that - this is what being
done - you just get the transcript, the
REQUISITES are: the parties are the same
pa r ty which involve in the o ther
proceedings, the other party was given the
opportunity to cross examine that
unavailable witness who is already dead,abroad or no longer be found & then that
transcript of the stenographer during the
testimony of that witness should be
presented in court & mark it as an exhibit,
you will say your honor i have here the
stenographic note of the witness in which
we are the same parties the prosecution was
given the opportunity to present & i would
like to avail the testimony of this particular
witness who is no longer available & that is
my right & I am marking this stenographic
note of testimony of the witness as part of
my evidence - then mark it as a particular
exhibit. and dont forget at the end of your
presentation of evidence you formally offer
it, kasi its a documentary evidence,
although testimonial pa rin ang contents but
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of course but for purposes of formally
offering it like it should be treated like an
ordinary document formally offered in
court. Dont forget that.
- To Have Compulsory Process Issued tosecure the Attendance of Witnesses &
Production of Other Evidence in His
Behalf - supposing you know a witness, a
government official who has the custody of
the document in which your defense will be
strengthened & you need his testimony &
this official refuses to testify, you have the
right to ask the court to compel that public
official to testify.
- YOU ask the court for a subpoena for thatparticular witness to be present & testify in
court - thats the right of the accused to have
a compulsory process.
- And remember that between the powers of
government & the right of the State in its
citizens , talagang you can just imagine the
disparity of the position, hence, in order that
the accused would not be wrongfully
convicted he should be afforded of the
opportunity to defend himself, & one themis to have that right to compulsory process
to ask the court Your honor may I ask for a
subpoena for a particular public official & I
have already talk to him & he refuses to
testify. You can ask the court for the
issuance of the subpoena.
- What is the consequence of the failure of the
public officer to obey the subpoena of the
court - will he could be cited in contempt &
you can just imagine if the court resort to
incarcerate you until such time you comply
the order of the court to testify.
- You can just imagine if a person is
wrongfully convicted simply because he
was deprived of the opportunity to secure an
evidence & it is the duty of the State also
that the case of the people should be based
on truth & justice, hindi lang a matter of
persecution.
- The Right to have a speedy, impartial
public trial- how do you invoke this right to speedy trial
- well, if you will examine the jurisprudence
on this matter, first you have to demand, &
usually if you demand there are already
several postponements, for example,
arraignment, if you are a detained accused
for a particular crime, lets say the case of
murder, under the Rules from the time your
case was raffled, the court should set your
case for arraignment within 10 days afterraffle. Now, if you will not be arraigned in
that period & several postponements until it
is already 1 yr, 2 yrs & you are not yet been
arraigned, then you can invoke your right to
a speedy trial.
- For 1 year hindi ka na arraigned it is a clear
violation of your right to a speedy trial.
Now, & if the court found that talagang the
prosecution is remissed despite repeated
warnings, & by the way the determinationwhether there is already an undue delay
could not be ascertained merely by
falsification of giving you ample time, its
about whether the prosecution has been
given ample opportunity, repeatedly warned
by the court & yet failed to perform its duty
in which case the court has no other choice
but to sustain the invocation by the accused
of his right to a speedy trial & if you will
look at the jurisprudence, usually yung case
di pa nachacharge, for example yung case ni
Tatad f