ESSENTIAL CONCEPTS IN CRIMINAL PROCEDURE

(Part 1) JURISDICTION 1. The jurisdiction of the Municipal Trial Courts was increased from the original penalty of not exceeding six (6) months imprisonment and/or P200 fine, to not exceeding four (4) years and two (2) months and/or a fine of P4,000 in BP 129, and further increased to not exceeding six (6) years irrespective of the fine in RA 7691. Hence, although originally only minor offenses were not subject to preliminary investigation (People vs Abejuela, 38 SCRA 324), by increasing the jurisdiction of the Municipal Courts, more serious offenses were also NOT made subject to preliminary investigation. INSTITUTION OF A CRIMINAL ACTION (RULE 110) 1. The institution of a criminal action depends upon whether or not the offense is one which requires a preliminary investigation (Sec. 1, Rule 110, Rules of Court). Where a preliminary investigation is required, a criminal action is instituted by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation (Sec. 1, Rule 110, Rules of Court). Where a preliminary investigation is not required, a criminal action is instituted in either of two ways: (a) (b) by filing the complaint or information directly with the Municipal Trial Court or Municipal Circuit Trial Court, or by filing the complaint with the office of the prosecutor (Sec. 1, Rule 110, Rules of Court).

2. A query that is often involved at this juncture is why the rule makes reference only to the Municipal Trial Court and the Municipal Circuit Trial as the courts in which offenses may be prosecuted by the direct filing of the information or complaint. The Regional Trial Court and the Metropolitan Trial Court are not mentioned in the rule. The reason is obvious. There is no direct filing of an information or complaint with the Regional Trial Court because its jurisdiction covers offenses which require preliminary investigation. A preliminary investigation is to be conducted for offenses where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day (Sec. 1, Rule 112, Rules of Court). The Regional Trial Court has jurisdiction over an offense punishable with imprisonment of more than six (6) years, way above the minimum penalty for an offense that requires a preliminary investigation. On the other hand the Municipal Trial Court has exclusive jurisdiction over offenses punishable with imprisonment not exceeding six (6) years ( Sec. 32[2], Judiciary Reorganization Act of 1980 [BP 129]). There is likewise no direct filing with the Metropolitan Trial Court because in Manila, including other chartered cities, the complaint, as a rule, shall be filed with the office of the prosecutor, unless otherwise provided by 1

their charters (Sec. 1, Rule 110, Rules of Court). The rule is that in chartered cities the complaint shall be filed with the prosecutor but in case of a conflict between a city charter and a provision of the Rules of Court, the former, being substantive law, shall prevail. Effect of the institution of the criminal action on period of prescription The institution of the criminal action shall interrupt the period of prescription of the offense charged. The exception is when the contrary is so provided by special laws (Sec. 1, Rule 110, Rules of Court). Meaning of complaint A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer, charged with the enforcement of the law violated (Sec. 3, Rule 110, Rules of Court). The complaint is not filed in the name of a private person, natural or juridical but in the name of the People of the Philippines. It is filed against all persons who appear to be responsible for the offense involved (Sec. 2, Rule 110, Rules of Court). Meaning of information An information is an accusation in writing charging a person with an offense subscribed by the prosecutor and filed with the court (Sec. 4, Rule 110, Rules of Court). Like a complaint, an information is filed in the name of the People of the Philippines against all persons who appear to be responsible for the offense involved (Sec. 2, Rule 110, Rules of Court). Distinction between a complaint and an information 1. A complaint must be under oath. By the clear terms of Sec. 3 of Rule 110, it is a sworn written statement. An information requires no oath. Sec. 4 of Rule 110 merely requires that it be an accusation in writing. This is because the prosecutor filing the information is acting under the oath of his office (Estudillo vs. Baloma, 426 SCRA 83). 2. A complaint or information is subscribed by (a) the offended party, (b) any peace officer, (c) or other public officer charged with the enforcement of the law violated (Sec. 3, Rule 110, Rules of Court). An information is subscribed by the prosecutor (Sec. 4, Rule 110, Rules of Court). Who must prosecute a criminal action 1. A criminal action is prosecuted under the direction and control of the prosecutor. This is the general rule and this applies to a criminal action commenced either by a complaint or an information (Sec. 5, Rule 110, Rules of Court). Even if there is a private prosecutor, the criminal action is still prosecuted under the direction and control of the public prosecutor.

2. The appointment of a private prosecutor is done by the offended party and is the mode by which the latter intervenes in the prosecution of the offense. This intervention is however, only allowed where the civil action for the recovery of the civil liability is instituted with the criminal action pursuant to Rule 111 (Sec. 16, Rule 110, Rules of Court). Hence, the offended party may not intervene in the prosecution of the offense through a private prosecutor if the offended party (a) waives the civil action, (b) reserves the right to institute it separately, or (c) institutes the civil action prior to the criminal action. When a private prosecutor may prosecute a case even in the absence of the public prosecutor 1. A private prosecutor may prosecute the criminal action up to the end of the trial even in the absence of the public prosecutor if he is authorized to do so in writing. This written authorization shall be given by either the Chief of the Prosecution Office or the Regional State Prosecutor. The written authorization in order to be given effect must however, be approved by the court (Sec. 5, Rule 110, Rules of Court; A.M. No. 02-2-07-SC, April 10, 2002 effective May 1, 2002). 2. The written authorization to the private prosecutor shall be given because of either of the following reasons: (a) the public prosecutor has a heavy work load or, (b) there is a lack of public prosecutors (Sec. 5, Rule 110, Rules of Court; A.M. No. 02-2-07-SC, April 10, 2002 effective May 1, 2002). Prosecution of a criminal action in the Municipal Trial Court or Municipal circuit Trial Court A criminal action in a Municipal Trial Court or in a Municipal Circuit Trial Court shall be prosecuted under the direction and control of the prosecutor (Sec. 5, Rule 110, Rules of Court). However, when the prosecutor assigned is not available, the action may be prosecuted by (a) the offended party, (b) any peace officer, (c) or public officer charged with the enforcement of the law violated (OCA Circular No. 39-2002, August 21, 2002). Prosecution of adultery and concubinage 1. The prosecution of adultery and concubinage is done upon a complaint filed by the offended spouse. The rule stresses that the action cannot be instituted against one party alone. It must be instituted against both guilty parties, unless one of them is no longer alive (Sec. 5, Rule 110, Rules of Court). 2. The offense of adultery and concubinage may not be instituted if it is shown that the offended party has consented to the offense or has pardoned the offenders (sec. 5, Rule 110, Rules of Court). Since the rule does not distinguish, the consent or pardon may be either expressed or implied.

Prosecution of seduction, abduction and acts of lasciviousness

1. The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by them (Sec. 5. Rule 110, Rules of Court). Note that the pardon must be expressly made. It is clear that an implied pardon is not contemplated under Sec. 5 of Rule 110. 2. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf (Sec. 5, Rule 110, Rules of Court). 3. Also, under Sec. 5 of Rule 110, the offended party, even if a minor, has the right to initiate the prosecution of the offense, independently of her parents, grandparents or guardian except if she is incompetent or incapable of doing do (Sec. 5, Rule 110, Rules of Court). Where the minor fails to initiate the prosecution of the offense, the complaint may be filed by the minors parents, grandparents or guardian in the successive order mentioned. This right to file the complaint shall be exclusive of all other persons except with respect to the state under the conditions in the immediately preceding paragraph (Sec. 5, Rule 110, Rules of Court). Note: The crime of rape is no longer a private crime. Hence, it no longer requires the filing of a complaint by the offended party or her parents, grandparents or guardian (Sec. 5 of Rule 110, 3rd paragraph). Under Sec. 2 of the Anti-Rape Law of 1997 (RA 8353) the crime of rape is now classified as a crime against persons. Effect of R.A. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) Under Sec. 27 of R.A. 7610, complaints on cases of unlawful acts mentioned in the law committed against children, may be filed by the following: (a) offended party; (b)parents or guardians; (c) ascendant or collateral relative within the third degree of consanguinity; (d)officer, social worker or representative of a licensed child-caring institution; (e) officer or social worker of the Department of Social Welfare and Development; (f) barangay chairman; or (g)at least three (3) concerned, responsible citizens where the violation occurred. Prosecution of defamation 1. The defamation under this rule (Sec. 5, Rule 110) consists in the imputation of the offenses of adultery, concubinage, seduction, abduction and acts of lasciviousness (Sec.5, Rule 110, Rules of Court).

2. The criminal action for defamation under the rule shall be at the instance of the offended party only and upon a complaint filed by said offended party i.e., only the offended party can file the complaint (Sec. 5, Rule 110, Rules of Court). Prosecution for violation of special laws Where the offense is a violation of a special law, the same shall be prosecuted pursuant to the provisions of said law (Sec. 5, Rule 110, Rules of Court). When a complaint or an information is deemed sufficient A complaint or an information is deemed sufficient if it contains the following: (a) (b) (c) (d) (e) (f) The name of the accused; if the offense is committed by more than one person, all of them shall be included in the complaint or information; The designation of the offense given by statute; The acts or missions complained of as constituting the offense; The name of the offended party; The approximate date of the commission of the offense; and The place where the offense was committed (Sec. 6, Rule 110, Rules of Court).

How to state the name of the accused Sec. 7 of Rule 110 establishes the following rules in designating the name of the accused: (a) (b) The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been known is known. If his name cannot be ascertained, he must be described under a fictitious name. A description of the accused under a fictitious name must be accompanied by a statement that his true name is unknown. If later his true name is disclosed by him or becomes known in some other manner, his true name shall be inserted in the complaint or information and in the records of the case.

(c)

How to state the name of the offended party who is a natural person The complaint or information must state the name and surname of the offended party or any appellation or nickname by which such person has been or is known. However, if there is no better way of identifying him, he must be described under a fictitious name. If later on, the true name of the offended party is disclosed or ascertained, the court must cause such true name to be inserted (Sec. 12, Rule 110, Rules of Court). How to state the name of the offended party which is a juridical person

If the offended party is a juridical person, it is sufficient to state its name or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law (Sec. 12(c), Rule 110, Rules of Court). Rule if the name of the offended party is unknown in offenses against property In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged (Sec. 12(a), Rule 110, Rules of Court). Designation of the offense In designating the offense, the following rules must be observed: (a) The designation of the offense requires, as a rule, that the name given to the offense by statute must be stated in the complaint or information. If the statute gives no designation to the offense, then reference must instead be made to the section or subsection punishing it (Sec. 8, Rule 110, Rules of Court). (b) Included in the complete designation of the offense is an averment of the acts or omissions constituting the offense (Sec. 8, Rule 110, Rules of Court). (c) The present rule also provides for a mandatory requirement i.e., that the complaint or information must specify the qualifying and aggravating circumstances of the offense (Sec. 8, Rule 110, Rules of Court). The twin circumstances of minority and relationship under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, are in the nature of qualifying circumstances because they alter the nature of the crime of rape and increase the penalty. As special qualifying circumstances they must be specifically pleaded or alleged with certainty in the information; xxx If the offender is merely a relation - not a parent, ascendant, step-parent, guardian, or common law spouse of the mother of the victim the specific relationship must be alleged in the information, i.e., that he is a relative by consanguinity or affinity [as the case may be] within the third civil degree. The information in the instant case only mentioned appellant as AAAs uncle, without specifically stating that he is a relative within the third civil degree, either by affinity or consanguinity. Even granting that during trial it was proved that the relationship was within the third civil degree either of consanguinity or affinity, still such proof cannot be appreciated because appellant would thereby be denied of his right to be informed of the nature and cause of the accusation against him. Appellant cannot be charged with committing the crime of rape in its simple form and then be tried and convicted of rape in its qualified form. Thus, the Court of Appeals correctly disregarded the qualifying circumstance of relationship (People vs. Ubia, G.R. No. 176349, July 10, 2007). Cause of accusation

In informing the accused of the cause of accusation against him, it is not necessary to employ the words used in the statute alleged to have been violated. It is sufficient for the complaint or information to use ordinary and concise language sufficient to enable a person of common understanding to know the following (Sec. 9, Rule 110, Rules of Court): (a) the offense being charged; (b)the acts or omissions complained of as constituting the offense; and (c) the qualifying and aggravating circumstances. Qualifying and aggravating circumstances A significant change in the Rules of Criminal Procedure which took effect on December 1, 2000 is the requirement that the complaint or information, in designating the offense, shall specify the qualifying and aggravating circumstances (Sec. 8, Rule 110). The importance of this requirement is reiterated in the succeeding section, (Sec. 9, Rule 110) which considers as part of the cause of accusation, a statement of the qualifying and aggravating circumstances which accordingly must be stated in an ordinary and concise language. Under past jurisprudence (People vs. Ang, (139 SCRA 115), qualifying circumstances not alleged in the information but proven during the trial shall be appreciated as a generic aggravating circumstance. This is no longer the rule. Even if proven, such circumstances will totally merit no consideration from the court. The rule now requires that such circumstances must be alleged and proven before being considered by the court. For instance, in People vs. Mendoza, 383 SCRA 115, the information alleged simple rape. During the trial it was proven that the rape was committed with the use of a deadly weapon, a qualifying circumstance. The use of the deadly weapon cannot be considered by the court in its judgment. Hence, he cannot be convicted of rape with the use of a deadly weapon, but only of simple rape. Appreciating the circumstance would violate the constitutional right of the accused to be fully informed of the nature and cause of the accusation against him. To consider the circumstance would have the effect of punishing the accused for an offense greater than for which he is charged. In People vs. Sayaboc, 419 SCRA 659, the court did not consider price, craft or reward because they were not specifically alleged in the information. The rule does not require the use of the words qualifying/ aggravating . It is sufficient that such circumstances be specified in the complaint or information to apprise the accused of the charges against him(People vs. Tigle, 420 SCRA 424). In one case, the information failed to allege that the crime of murder was committed with the aggravating circumstances of band and uninhabited place but the same were proven during the trial. Predictably, such aggravating circumstances could not be considered in imposing the penalty. However, can they be appreciated in determining the civil liability? They could because evidence of the circumstances would entitle the victims heirs to exemplary damages (People vs. Agudez, 428 SCRA 692). Note: Exemplary damages may be awarded n a criminal case when there is evidence of one or more aggravating circumstances (Art. 2230, Civil Code of the Philippines).

Where a criminal action shall be instituted and tried As a rule, the criminal action shall be instituted and tried in the court of the municipality or territory (a) where the offense was committed, or (b) where any of its essential ingredients occurred. This rule is however, subject to existing laws (Sec. 15(a), Rule 110, Rules of Court). Rule where offense is committed in a train, aircraft or vehicle Where an offense is committed in a train, aircraft, or vehicle, whether public or private, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival. Note that this rule applies when the offense is committed in the course of the trip of the train, aircraft or vehicle (Sec. 15(b), Rule 110, Rules of Court). Rule where offense is committed on board a vessel Where an offense is committed on board a vessel, the criminal action shall be instituted and tried in (a) the court of the first port of entry, or (b) the municipality or territory where the vessel passed during its voyage. This rule applies when the offense is committed during the voyage of the vessel and is subject to the generally accepted principles of international law (Sec. 15(c), Rule 110, Rules of Court). Rule when the offense is covered by Art. 2 of the Revised Penal Code Crimes committed outside the Philippines but punishable under Art. Of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed (Sec. 15(d), Rule 110, Rules of Court). How to state the place of the commission of the offense The statement of the place of commission of an offense is sufficient if it can be understood from the allegations of the complaint or information that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court (Sec. 10, Rule 110, Rules of Court). Where the particular place where the offense was committed is however, an essential ingredient of the offense or is necessary for its identification, the description of the place of commission of the offense must be specific (Sec. 10, Rule 110, Rules of Court). How to state the date of the commission of the offense 1. Sec. 11 of Rule 110 establishes the general rule that it is not necessary to state the precise date the offense was committed because the offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. 2. The same rule provides by way of exception that it is necessary to state the precise date the offense was committed when it is a material ingredient of the offense (Sec. 5, Rule 110, Rules of Court). Duplicity of the offense

1. The general rule is that a complaint or an information must charge only one offense. More than one offense may however, be charged when the law prescribes a single punishment for various offenses (Sec. 13, Rule 110, Rules of Court). 2. When two or more offenses are charged in a single complaint or information, the accused must object to such fact before trial. If he does not so object, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense (Sec. 3, Rule 120, Rules of Court). PROSECUTION OF THE CIVIL ACTION (RULE 111) 1. When a criminal action is instituted, the civil action for the recovery of the civil liability is deemed instituted. But the phraseology of the present rule indicates that it is only the civil liability arising from the offense charged which is deemed instituted with the criminal action (Sec. 1, Rule 111). The civil actions which have sources apart from the crime like quasidelicts (culpa aquiliana and independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are not deemed instituted with the criminal action and may be brought separately by the offended party. They shall proceed independently of the criminal action and require only a preponderance of evidence (Secs. 1 and 3 of Rule 111). They need not be reserved (Neplum vs. Orbeso, 384 SCRA 466). The rulings in Maniago vs. CA, 253 SCRA 674, and San Ildefonso Lines, Inc. vs. CA, 289 SCRA 568, are abandoned. These cases required reservation even in cases of quasi-delicts and independent civil actions. 2. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but such claim must be litigated in a separate action (Sec. 1 of Rule 111; Casupanan vs. Laroya, 388 SCRA 28) even if the counterclaim or cross-claim arises out of or is connected with the transaction or occurrence which is the subject matter of the opposing partys claim. The rulings in Shafer vs. Judge, 167 SCRA 386 and Javier vs. IAC, 171 SCRA 605, are no longer applicable. PRELIMINARY INVESTIGATION (RULE 112) 1. Under A.M. No. 05-8-26-SC effective October 3, 2005, only the following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and other officers as may be authorized by law. 2. Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts can no longer accept cases for preliminary investigation as of October 3, 2005 except those pending with them but not later than December 31, 2005. Meaning of preliminary investigation 1. Preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial (Sec. 1, Rule 112, Rules of Court).

2. A preliminary investigation is not a trial but is, in certain cases, the initial step towards the criminal prosecution of a person. It is a mere inquiry or a proceeding which do not involve the examination of witnesses by way of direct or cross-examinations. Its purpose is not to determine the guilt of the respondent beyond reasonable doubt, but to determine (a) whether or not a crime has been committed, and (b) that the respondent is probably guilty of said crime. 3. A preliminary investigation does not require the full and exhaustive presentation of every evidence available to the persons involved but merely such evidence as may engender a well-founded belief that an offense has been committed and that the respondent is probably guilty thereof. When a preliminary investigation is required A preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the law prescribes a penalty of at least four (4) years, two (2) months and one (1) day without regard to the fine (Sec. 1, Rule 112, Rules of Court). This is the general rule. When preliminary investigation is not required even if the offense requires a preliminary investigation If a person is arrested lawfully without a warrant involving an offense which requires a preliminary investigation, i.e., the penalty is at least four (4) years, two (2) months and one (1) day, an information or complaint may be filed against him without need for a preliminary investigation. If he has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted instead of a preliminary investigation. In the absence or unavailability of an inquest prosecutor, the complaint may be filed directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person (Sec. 7, Rule 112, Rules of Court). 2. The fact that a person was lawfully arrested without a warrant does not absolutely bar him from availing of a preliminary investigation because before the complaint or information is filed, he may ask that a preliminary examination be conducted. However, before he is granted the preliminary investigation asked for by him, he must sign a waiver of the provisions of Art. 125 of the Revised Penal Code. This penal code provision imposes a penalty upon a public officer or an employee who, although having detained a person for some legal ground, fails to deliver the person arrested to the proper judicial authorities within the periods of twelve (12), eighteen (18) or thirty six (36) hours as the case may be. By virtue of Republic Act 7438, any waiver by the person arrested or detained or under custodial investigation shall be in writing, signed by such person in the presence of his counsel, otherwise such waiver shall be null and void (Sec. 2, Republic Act 7438, Rules of Court). The waiver of the provisions of Art. 125 of the Revised Penal Code does not bar the person arrested from applying for bail and even while the preliminary investigation is pending. This preliminary investigation must be terminated within fifteen (15) days from its inception (Sec. 7, last par., Rule 112, Rules of Court). Note that under the Rules, bail is available to a person under custody even before he is charged in court. He may apply for bail in

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any court in the province, city or municipality where he is held (Sec. 17(c), Rule 114, Rules of Court). It is not proper to secure bail in any other place. In one case, the accused was arrested lawfully without a warrant for carnapping and detained at Camp Crame in Quezon City. He asked for a preliminary investigation and signed a waiver of the provisions of Art. 125 of the Revised Penal Code. However, the assisting judge of a Marikina Regional Trial Court approved the bail bond for the accused who was being held in Quezon City. The Supreme Court held that while a person lawfully arrested and detained and not yet formally charged can apply for bail, the application must be filed in the province, city or municipality where the person arrested is held. In this case, the bail application should have been filed with a Quezon City court which has the authority to grant bail and not a Marikina court (Ruiz vs. Beldia, Jr., 451 SCRA 402). 3. If the complaint or information has been filed without a preliminary investigation, the accused who desires a preliminary investigation, may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation (Sec. 7, Rule 112, Rules of Court). 4. Within ten (10) days after the investigation, the investigation officer shall determine whether or not there is sufficient ground to hold the respondent for trial (Sec. 3 (f), Rule 112, Rules of Court). How preliminary investigation is conducted 1. Filing of complaint - A complaint shall be filed before the investigating officer. This complaint shall be accompanied by (a) the affidavits of the complainant, (b) the affidavits of his witnesses and, (c) other supporting documents that would establish probable cause. It shall contain the address of the respondent (Sec. 3(a), Rule 112, Rules of Court). The affidavits that shall accompany the complaint shall be subscribed and sworn to before (a) any prosecutor, or (b) before any government official authorized to administer oaths. In their absence or in case they are unavailable, the affidavits may be subscribed and sworn to before a notary public. The officer or notary public before whom the affidavits were subscribed and sworn to must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits (Sec. 3(a), Rule 112, Rules of Court). 2. Dismissal or issuance of subpoena - From the filing of the complaint, the investigating officer has ten (10) days within which to decide on which of the following options to take: (a) to dismiss the complaint if he finds no ground to conduct the investigation; or (b) to issue a subpoena in case he finds the need to continue with the investigation, in which case the subpoena shall be accompanied with the complaint and its supporting affidavits and documents (Sec. 3(b), Rule 112, Rules of Court). 3. Filing of counter-affidavit - The respondent who receives the subpoena, the complaint, affidavits and other supporting documents, is not allowed to file a motion to dismiss. Instead, within ten (10) days from receipt of the subpoena, he is required to submit his counter-affidavit, the affidavits of his

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witnesses and the supporting documents relied upon for his defense (Sec. 3 (c), Rule 112, Rules of Court). 4. If despite the subpoena, the respondent does not submit his counteraffidavit within the ten-day period granted him, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. The same rule shall apply in case the respondent cannot be subpoenaed (Sec. 3(d), Rule 112, Rules of Court). 5. Clarificatory hearing if necessary - Within ten (10) days from the submission of the counter-affidavit, other affidavits and documents filed by the respondent, a hearing may be set by the investigating officer, only if there are facts and issues to be clarified either from a party or a witness. The parties do not have the right to examine or cross-examine each other or the witnesses. If they have questions to ask, they shall submit the questions to the investigating officer who shall ask the questions (Sec. 3 (e), Rule 112, Rules of Court). 6. Resolution of the investigating officer Within ten (10) days from the termination of the investigation, the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial (Sec. 3 (f), Rule 112, Rules of Court). If the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution and information. Otherwise, he shall recommend the dismissal of the complaint (Sec. 4, Rule 112, Rules of Court). The information shall contain a certification by the investigating officer under oath in which he shall certify to the following: (a) that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, (b) that there is a reasonable ground to believe that a crime has been committed, (c) that the accused is probably guilty thereof, (d) that the accused was informed of the complaint and of the evidence submitted against him, and (e) that he was given an opportunity to submit controverting evidence (Sec. 4, Rule 122, Rules of Court). Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action (Sec. 4, Rule 112, Rules of Court). Rule when recommendation for dismissal is disapproved Where the investigating prosecutor, recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter, mat by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation (Sec. 4, Rule 112, Rules of Court).

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Rule when resolution is reversed or modified by the Secretary of Justice If upon petition by a proper party or motu propio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor of chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties (Sec. 4, Rule 112, Rules of Court). ARREST (RULE 113) 1. Under Sec. 5 of Rule 113, there are instances when a peace officer or even a private person may make an arrest without warrant. The second instance when an arrest may be made lawfully without a warrant has been liberalized as follows: When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it. (Sec 5[b] of Rule 113) Formerly, it provided x x x he has personal knowledge of facts indicating that the person to be arrested has committed it. Warrantless arrests 1. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant (Malacat vs. Court of Appeals, 283 SCRA 159). Hence, the doctrine is that a warrant of arrest is required before an arrest is made. A warrantless arrest is the exception. 2. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure provide for the instances when a warrantless arrest may be made: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

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Section 5 of Rule 113 provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed (called hot pursuit; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending. There is another ground for a warrantless arrest other than those provided for under Sec. 5 of Rule 113 of the Rules of Court. That ground is when a person previously lawfully arrested escapes or is rescued. Under the Rules, any person may immediately pursue or retake him without a warrant at any time and in any place3 within the Philippines (Sec. 13, Rule 113, Rules of Court). Who may make the warrantless arrest The warrantless arrest may be made not only by a peace officer but also by a private person. When the latter makes the arrest under the circumstances provided for under the Rules, the arrest is called citizens arrest. A. The flagrante delicto exception The exception in Sec. 5(a), Rule 113 provides: * * * When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense * * * Requisites for the application of the exception For a warrantless arrest of a person caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (a) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence or within the view of the arresting officer (People vs. Burgos, 144 SCRA 1; People vs. Laguio, G.R. No. 128587, March 16, 2007). Reliable information alone is not sufficient to justify a warrantless arrest under Section 5(a), Rule 113 Existence of an overt act of a crime 1. The rule requires that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense and that an arrest must precede the search. While a search incidental to a lawful arrest is sanctioned by the Rules of Court, recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed as where the search preceded the arrest. A flagrante delicto arrest is not justified when no one among the accused was committing a crime in the presence of the police officers, more so if the police officers did not have personal knowledge of the facts indicating that the persons to be arrested had committed an offense. The searches

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conducted on the plastic bag then cannot be said to be merely incidental to a lawful arrest. Reliable information alone is not sufficient to justify a warrantless arrest under Section 5(a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense (People vs. Nuevas, G.R. No.170233, February 22, 2007). 2. Consider an experienced officer who upon noticing the characteristic outlines of the handle of a pistol bulging from the waistline of a pedestrian, stops him in the street, introduces himself as a policeman and without asking any questions immediately arrests him, cuffs him and forces him inside a waiting patrol car. Inside the car, the officer fishes out the firearm from the arrestees waist, asks him whether or not he has a license to possess and a permit to carry the firearm, and after an admission from the person arrested that his gun has neither a license nor any other permit books him for illegal possession of firearms. Whether or not the acts of the officer are permissible under the law and the Rules will necessarily be determined by the requisites provided for by Sec. 5(a) of Rule 113. The crucial issue to be laid before the court would be whether or not having the butt of a pistol bulge from ones waist plainly within the view of the officer constitutes an overt act of the crime of illegal possession of firearm which would justify an immediate arrest. The defense counsel would certainly argue that mere carrying of a pistol does not in itself indicate a violation of the law since illegal possession of a gun cannot be inferred from its mere possession. When the apprehension was made, the officer had no awareness that a crime is being committed in his presence since he had no prior knowledge that the person carrying the same had no license for the firearm, a knowledge that came to him only after the arrest. In short, there was absolutely nothing under the facts that would show an overt act of a crime other than the mere suspicion that the gun was unlicensed at the time of the arrest. The gun, under the circumstances becomes a fruit of the poisonous tree and would inevitably be held as inadmissible in evidence. 3. A 1988 case, People vs. Aminnudin, 163 SCRA 402, demonstrates the legal infirmity of an arrest for noncompliance with the requisites of the flagrante delicto exception. Here, two days before the arrest, constabulary officers received a tip from an informer that the accused was on board an identified vessel on a particular date and time and was carrying marijuana. Acting on the information, they waited for the accused and approached him as he descended the gangplank of the ship and arrested him. A subsequent inspection of his bag disclosed the presence of three kilos of marijuana leaves. The Court declared as inadmissible in evidence the marijuana found in the possession of the accused as a product of an illegal search as not being an incident to a lawful arrest. Emphatically, the Supreme Court declared that the accused was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. He was merely descending the gangplank of the ship and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became a suspect and so subject to apprehension. The court added that from the information received by the officers, they could have obtained a warrant since they had at least two days to apply for the same but the officers made no efforts to comply with the bill of rights. They chose to ignore the law.

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Then too, in People vs. Molina, 352 SCRA 174, the conviction by the trial court was reversed and set aside when the Supreme Court declared as invalid an arrest made merely on the basis of reliable information that the persons arrested were carrying marijuana. The accused were arrested while inside a pedicab despite the absence of any outward indications of a crime being committed. Similarly, in Malacat vs. Court of Appeals, 283 SCRA 159, the Supreme Court declared that a warrantless arrest cannot be justified where no crime is being committed at the time of the arrest because no crime may be inferred from the fact that the eyes of the person arrested were moving fast and looking at every person passing by. 4. A classic case that illustrates an invalid arrest and a subsequent illegal search and seizure is People vs. Mengote, 210 SCRA 174. The issue on the legality of the arrest, search and seizure stemmed from a telephone call to the police from an alleged informer that suspicious looking men were at a street corner in Tondo shortly before noon. The police operatives dispatched to the place saw three men one of whom who turned out to be Mengote, was looking from side to side clutching his abdomen. The operatives approached the three men and introduced themselves as policemen. Two of them accordingly tried to run away but the attempt was foiled. The search yielded a revolver in the possession of Mengote and a fan knife in the pocket of another. Mengote contends that the revolver should not have been admitted in evidence because its seizure was a product of an illegal search and made as an incident to a lawful arrest. Speaking through Justice Isagani A. Cruz the Court ruled that the requirements of a warrantless arrest were not complied with. There was no offense which could have been suggested by the acts of Mengote of looking from side to side while holding his abdomen. Observed the Court: These are certainly not sinister acts. * * * He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun. * * * By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was at least being attempted in their presence. 5. One relatively recent case (People vs. Laguio, G.R. No. 128587, March 16, 2007), and which drew much from the ruling in Aminnudin likewise aptly illustrates the application of the doctrine. In this case, two men were arrested while they were about to hand over a bag of shabu to a policer officer. Questioned, the arrested men told police operatives working for a modelling agency owned by a certain Wang although they did not disclose the source of the shabu but they disclosed that they knew of a scheduled delivery of shabu early the following morning and that their employer, Wang could be found at a certain apartment building in Malate, Manila. The police operatives decided to look for Wang to shed light on the illegal drug activities of his alleged employees and proceeded to the location of the apartment and placed the same under surveillance. When Wang came out of the apartment towards a parked car, two other police officers approached Wang, introduced themselves to him as police officers, asked his name and, upon hearing that he was Wang, immediately frisked him and asked him to open the back compartment of the car. When frisked, there was found inside the front right pocket of Wang and

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confiscated from him an unlicensed pistol with live ammunitions. At the same time, the other members of the operatives searched the car and found inside it were the following items: (a) transparent plastic bags with shabu; (b) cash in the amount of P650,000.00; (c) electronic and mechanical scales; and (d) another unlicensed pistol with magazine. Then and there, Wang resisted the warrantless arrest and search. The Supreme Court, in no uncertain terms declared that the facts and circumstances surrounding the case did not manifest any suspicious behavior on the part of Wang that would reasonably invite the attention of the police. He was merely walking from the apartment and was about to enter a parked car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled, said the Court that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest (Citing People vs. Binad Sy Chua, 444 Phil. 757 and People vs. Molina, 352 SCRA 174). What is clearly established from the testimonies of the arresting officers said the Court, is that Wang was arrested mainly on the information that he was the employer of the two men who were previously arrested and charged for illegal transport of shabu. They did not in fact identify Wang to be their source of the shabu when they were caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day and that Wang may be found in an apartment building in Malate, the arresting officers conducted what they termed was a surveillance operation in front of said apartment, hoping to find a person who will match the description of Wang, the employer of the arrested men. The conclusion of the trial court that the warrantless arrest was illegal and that ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful, was sustained by the Supreme Court.

B. The Hot Pursuit exception 1. This exception found in Sec. 5 (b) of Rule 113 which authorizes a warrantless arrest provides: * * * When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it * * * . 2. Under this exception, the crime was not committed in the presence of the person making the arrest although a crime has just been committed. But what justifies the warrantless arrest? First, a crime has just been committed (close proximity between the arrest and the time of commission of the crime). Second, the person making the arrest has probable cause to believe that the person to be arrested has committed it. Note that this probable cause is based on personal knowledge of facts and circumstances.

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3. Probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts. A reasonable suspicion therefore. Must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest (People vs. Doria, 301 SCRA 668). 4. The probable cause justifying a warrantless arrest must, under the Rules, be based on personal knowledge of facts and circumstances on the part of the person making the arrest. Query: how can he have personal knowledge of facts when he was not present when the crime was committed? Obviously this personal knowledge has no reference to the actual commission of the crime but to personal knowledge of facts leading to probable cause. This view is illustrated by the case of People vs. Gerente, 219 SCRA 756. Here, three hours after the killing, the accused was arrested after a witness reported to the police the identity of the culprit. The arrest was effected based on the personal knowledge of the police after an investigation which disclosed that there was indeed a dead victim, and that the scene of the crime yielded the weapons used. The Supreme court held the arrest to be a valid warrantless arrest. 5. There is no rule on the exact proximity of the commission of the offense to the arrest. The Rule merely refers to the phrase, has just been committed. In People vs. Manlulu, 231 SCRA 701, the Supreme Court ruled as invalid an arrest that took place 19 hours after the commission of the crime of murder. An invalid arrest also occurred in a case where the arrest was made one (1) day after the crime of robbery was committed in People vs. Del Rosario, 305 SCRA 740. In People vs. Kimura, 428 SCRA 51, an arrest made two (2) days after a drug offense was committed, was struck down as invalid. In People vs. Gerente, 219 SCRA 756, an arrest made three (3) hours after the commission of murder was considered valid. So was an arrest made twelve (12) hours after the crime of robbery occurred (People vs. Sinoc, 275 SCRA 357). Waiver of illegality of the arrest The illegality of the arrest must be raised before entering a plea, otherwise, the irregularity is waived. This right to question the arrest is not waived even if the accused has applied for bail or even if he has actually been admitted to bail (Sec. 26, Rule 114). In People vs. Ejandra, 429 SCRA 364, the accused were charged with the crime of kidnapping for ransom but were illegality arrested. They however, raised the illegality of the arrest for the first time on appeal to the Supreme Court which held that by doing so belatedly, they have waived any irregularities relating to their arrest. Rights of a person arrested (R.A. 7438) 1. The rights of a person arrested, detained or under custodial investigation are succinctly spelled out by Republic Act No. 7438. These rights are:

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(a) The right to be assisted by counsel at all times (Sec. 2(a), R.A. 7438); (b) The right to remain silent (Sec. 2(b), R.A. 7438); (c) The right to be informed of the above rights (Sec. 2(b), R.A. 7438); and (d) The right to be visited by the immediate members of his family, by his counsel, or by any non-governmental organization, national or international (Sec. 2(f), Rule 113, Rules of Court). 2. The counsel must be one who is independent and competent. He shall be allowed to confer at all times with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by the investigating officer with a competent and independent counsel (Sec.2(b), Rule 113, Rules of Court). 3. In the absence of a lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code (Sec. 3, R.A. 7438). Also, any waiver of the provisions of Article 125 of the Revised Penal Code, shall be in writing, and signed by the person arrested, detained or under custodial investigation in the presence of his counsel, otherwise the waiver shall be null and void and of no effect (Sec. 2(e), Rule 113, Rules of Court). 4. Any extrajudicial confession made shall also be in writing and signed by the person, detained or under custodial investigation in the presence of his counsel, or in the latters absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise such extrajudicial confession shall be inadmissible as evidence in any proceeding (Sec. 2(d), R.A. 7438). 5. R.A. 7438 expanded the meaning of custodial investigation. Under Sec. 2(f) of the Act, custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the inviting officer for any violation of law. 6. R.A. 7438 provides penalties for its violations. For instance, any arresting officer or investigating officer who fails to inform any person, arrested, detained or under custodial investigation of his rights to remain silent and to counsel, shall suffer a penalty consisting of a fine of six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. Any person who obstructs, prevents or prohibits any lawyer, any member of the immediately family of a person arrested, detained or under custodial investigation or those who under the law are entitled to visit such person, shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00). Effect of admission to bail on objections to an illegal arrest

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An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued, provided that he raises the objection before he enters his plea. The objection shall be resolved by the court as early as practicable but not later than the start of the trial of the case (Sec. 26, Rule 114, Rules of Court). Persons not subject to arrest 1. Sec. 11, Art VI of the 1987 Constitution provides: A senator or member of the House of representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the congress is in session * * *. The privilege of a senator or a congressman will not apply when the offense is (1) punishable by imprisonment of more than six (6) years even if Congress is in session (People vs. Jalosjos, G.R. No. 132875-76, February 3, 2000). Also, if the offense is not punishable by imprisonment of not more than six (6) years, the privilege does not also apply if congress is not in session. 2. Under generally accepted principles of international law, sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and charge daffaires are immune from the criminal jurisdiction of the country of their assignment and are therefore immune from arrest (II Hyde, International Law, 2nd Ed). 3. Republic Act 75 prohibits the arrest of duly accredited ambassadors, public ministers of a foreign country, their duly registered domestics (Sec. 4, R.A. 75), subject to the principle of reciprocity (Sec. 7, R.A. 75). BAIL (RULE 114) 1. There are certain constitutional principles on bail, namely: (a) the general rule that all persons, shall before conviction be bailable by sufficient sureties, except those charged with offense punishable by reclusion perpetua or higher when evidence of guilt is strong; (b) the principle that the suspension of the privilege of the writ of habeas corpus doers not impair the right to bail; and; (c) the principle that excessive bail shall not be required (Sec. 13, Art. III, Constitution of the Philippines). In determining whether the offense is punishable by reclusion perpetua or higher, one must not look at the attendant circumstances. One has to look at the penalty imposed by law. If you have to look beyond the penalty and consider all circumstances, then it would now be like a trial and the purpose of bail is defeated (People vs. IAC, 147 SCRA 219). At the hearing of an application for bail, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing is automatically ewpeoduced at the trial (Sec. 8, Rule 14). It is not correct for the court to grant bail to one accused of reclusion perpetua or higher just because the prosecutor does not object to the grant of bail. The absence of objection from the prosecutor is never a basis for the

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grant of bail. The court must conduct a hearing to determine whether or not evidence of guilt is strong (Narciso vs. Sta. Romana-Cruz, March 17, 2000). To dispense with a hearing in cases of reclusion perpetua or higher shows ignorance or incompetence of the judge (Grageda vs. Tresvalles, 421 SCRA 5000). The constitutional provision on bail makes reference to the word. conviction It suggests that bail applies to those arrested for the violation of criminal laws. Does it apply to extradition proceedings? One case held, generally NO! However, it was ruled that there is no logic to confine bail to criminal proceedings. Bail should be made available in all cases where there is deprivation of liberty prior to or during trial. Although not a matter of right in extradition proceedings, bail may be granted if: (a) the extraditee is not a flight risk; and (b0 there are special, humanitarian and compelling reasons (Government of the U.S. vs. Purganan, 389 SCRA 623). The Supreme Court has recently leaned towards granting bail in extradition cases: Thus, Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.] It is not a criminal proceeding. Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition. It is sui generis, tracing its existence wholly to treaty obligations between different nations. It is not a trial to determine the guilt or innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also the machinery of criminal law. This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the immediate arrest and temporary detention of the accused if such will best serve the interest of justice. We further note that Section 20 allows the requesting state in case of urgency to ask for the provisional arrest of the accused, pending receipt of the request for extradition; and that release from provisional arrest shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently. Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. Temporary detention may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.

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While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the temporary detention is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail (Government of Hongkong Special Administrative Region, G.R. No. 153675, April 19, 2007). 2. Bail is the security given for the release of a person in the custody of the law (Sec. 1, Rule 114). Note the word, custody. This means that bail is not available to those who are free. It would be incongruous for someone to apply for bail if he is not in the custody of the law. Exception: There is an instance where a person who is not under the custody of the law may be required to post bail. Under Sec. 14 of Rule 119, if a material witness will not testify when required, the court, may, upon motion of either party, order the witness to post bail . If he refuses, he shall be committed to prison until he complies or is legally discharged after his testimony. 3. Bail is a matter of right (a) before or after conviction by the Municipal Trial Court and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. After conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, bail is a matter or discretion (Secs. 4 and 5 of Rule 114). This amendment of the 1985 Rules on Criminal Procedure was originally made in Supreme Court Circular No. 12-94 and substantial readopts the rule in the 1940 and 1964 Rules on Criminal Procedure. 4. A significant provision under Rule 114 is that an application for or admission to bail is not a bar to objections on illegal arrest or lack of preliminary investigation, provided such objections are raised before plea (Sec. 26 of Rule 115). 5. Bail may be in the form of (a) corporate surety (Sec. 10, Rule 14,), (b) property bond (Sec. 11, Rule 14), or (c) recognizance (Sec. 15, Rule 14). In recognizance, the court entrusts the accused to a person of known probity and responsibility who assumes the obligation to bring him to court when needed. The accused may even be released on his own recognizance

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under Sec. 15 of Rule 114. It is ordinarily applicable in light offenses. Under R.A. 6036, recognizance may be available when the imposable penalty does not exceed 6 months imprisonment and /or P2,000 fine. It may also apply when the accused has been imprisoned for a period that is equal to or more than the minimum period of the imposable penalty without application of the Indeterminate sentence Law. Where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one. Under PD 603, a youthful offender held for mental, physical examination, trial or appeal may apply for recognizance if he is unable to furnish bail. 6. As a rule, bail may be filed with the court where the case is pending. If the judge of that court is unavailable, then application may be filed with any RTC or MTC in the province, city or municipality. If the accused is arrested in a province, city or municipality where the case is not pending, then application for bail may be filed with the RTC of said place. If no RTC judge is available, then with an MTC in the said place (Sec. 17(a), Rules of Court). This rule applies when bail is a mater of right because when the grant of bail is a matter of discretion, the application should be filed with the court where the case is pending, whether pending for preliminary investigation, trial or appeal. The rule is the same when the accused seeks to be released on recognizance (Sec. 17(b), Rule 114). 7. Can a person apply for bail even if he is not yet charged in court? He can apply for bail but he must do so in the province, city or municipality where he is held(Sec. 17(c), Rule 114; Ruiz vs. Beldia, February 16, 2005). RIGHTS OF THE ACCUSED (Rule 115) 1. Among the rights of the accused is the right against self-incrimination the right to be exempt from being compelled to be a witness against himself (Sec. 1(e), Rule 115). This right is a right against testimonial compulsion and prohibits the use of physical or moral compulsion to extort communications from the accused (People vs. Ayson, 175 SCRA 216). Common reason then suggests that a corporation cannot invoke the right because it is not a natural person that can testify. The right does not apply to the physical examination of the accused like ultraviolet ray examination to determine presence of ultraviolet powder in the hands (People vs. Tranca, 235 SCRA 455). It does not prohibit photographing, fingerprinting and paraffin testing of the accused (Alih vs. Castro, 151 SCRA 279). Taking of hairstrands of the accused is not a violation of the right (People vs. Rondero, 320 SCRA 383), or taking of blood sample (People vs. Yatar, 428 SCRA 504). A woman cannot invoke the right to submit herself to a physical examination to determine her pregnancy (Villaflor vs. Summers, 41 Phil. 62), A person however, cannot be compelled to produce a sample of his handwriting to be used as evidence against him. Writing is something more than moving the body, or theh and or the fingers. It is not a purely mechanical act. It requires intelligence and attention because in this case, he is made to create evidence against him which does not exist (Beltran vs. Samson, 50 Phil. 270). By analogy compelling a person to reenact a crime is violative of his right against self-incrimination. The right against self-incrimination cannot be invoked if the witness, despite his answers has been given, in accordance with law, immunity from prosecution.

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ARRAIGNMENT(RULE 116) 1. Under the present rule, the accused cannot be arraigned through his counsel. Because he must be present at the arraignment and must personally enter his plea. (Sec. 1, Rule 116). 2. When the accused refuses to make a plea or he makes a conditional plea, a plea of guilty shall be entered for him (Sec. 1,( c), Rule 116). When the accused pleads guilty but presents exculpating evidence, a lea of not guilty shall likewise be entered for him I(Sec. 1(d), Rule 116). 3. The accused may be allowed to plead guilty to a lesser offense provided the following requisites concur: (a) the lesser offense to be pleaded is necessarily included in the offense charge (if the charge is attempted homicide, the accused may plead guilty to the lesser offense of slight physical injuries; but where the offense charge is estafa, he cannot plead guilty to theft. Theft is not included in estafa). (b) there must be consent of the prosecutor and the private offended party (Sec. 2, Rule 116). This is the reason for the notice to be given to the private offended party of the date of arraignment. He is supposed to appear for purposes of plea bargaining (Sec. 1(f), Rule 116). 4. If the accused pleads guilty to a capital offense , the court is not authorized to render judgment merely on the basis of the plea of guilty. The court is mandated to conduct first a searching inquiry to determine the voluntariness of the plea and whether or not the accused fully comprehends the consequences of his plea. Furthermore, the court shall require the prosecutor to prove the guilt of the accused and the degree of his culpability. This is true even if the accused has already entered a plea of guilty (Sec. 3, Rule 116). Where the offense is not capital, reception of the evidence is discretionary on the court to determine the penalty imposed (Sec. 4, Rule 116). Note: The concept of a capital offense remains. What has been affected by the new law is the penalty, not the concept. Said new the law (R.A. 9346), prohibits the imposition of the death penalty. In lieu of the death penalty in a capital offense, the penalty of reclusion perpetua shall be imposed when the law violated makes use of the nomenclature of the penalties of the Revised Penal code. If not, then life imprisonment shall be imposed. 5. May an improvident plea of guilty be withdrawn even after judgment of conviction? It can, provided the plea is withdrawn before the judgment of conviction becomes final. Also, the withdrawal must be a categorical declaration that he is withdrawing his plea of guilty and substituting it with a plea of not guilty. Mere testimony in open court of the reasons why he pleaded guilty, even if improvident, is not the withdrawal contemplated (People vs. Salamillo, 404 SCRA 211). If the accused files an application for probation, the judgment becomes final because the filing of the application under the Probation Law is a waiver of the right to appeal (Sec. 4, PD 968). A subsequent withdrawal of an alleged improvident plea of guilty is no longer allowed (Palo vs. Militante, 184 SCRA 395). 6. May an arraignment be suspended? Yes on any of the following grounds: (a) unsound mind of the accuse, (b) there is a prejudicial question,

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(c) There is a petition for review pending in the Department of Justice or the Office of the President (Sec. 11, Rule 116). Note: In determining whether or not a prejudicial question exists, one must first ask which case was filed first, the civil or the criminal case. If the criminal case was filed first and the civil case is subsequently filed, no prejudicial question exists. Thus, if a criminal action for bigamy was filed by the wife against the husband and subsequently an action to annul the marriage between the spouses is filed, there is no prejudicial question that will suspend the criminal action. If it is the reverse, there could be a prejudicial question. This is because the rule speaks of a previously instituted civil action( Sec. 7, Rule 111). Also, if both cases are criminal, it would not be correct to talk about a prejudicial question. The same holds true if both are civil cases. A prejudicial question contemplates a civil case and a criminal case. There must be a civil case first followed by a criminal action with intimately related issues and the resolution of such issue determines whether or not the criminal action may proceed (Sec. 7, Rule 111) MOTION TO QUASH (RULE 117) 1. A motion to quash is the criminal procedure equivalent of a motion to dismiss in a civil case. It cannot be orally made. The rule requires that it be in writing signed by the accused or his counsel (Sec. 1, Rule 117). The motion must distinctly specify its factual and legal grounds and the court shall not consider a ground not stated in the motion, except lack of jurisdiction over the offense charged (Sec. 1, Rule 117). Reminder: Memorize the grounds for a motion to quash. The motion to quash is to be filed before the accused enters a plea. If no motion to quash is filed before the accused pleads, there arises an implied waiver of all objections except the following objections: (a) that the facts charged do not constitute an offense, (b) that the court has no jurisdiction over the offense charged, (c) that the criminal action or liability has been extinguished, and (d) that the accused has been previously convicted or acquitted of the offense charged, or that the case against him was dismissed or otherwise terminated without his express consent ( double jeopardy) (Sec. 9, Rule 117). If the accused files a motion to quash, those objections he failed to allege are also deemed waived except the grounds mentioned in the immediately preceding paragraph (Sec. 9, Rule 117). 2. If the motion to quash is meritorious, the court will normally dismiss the information or complaint. Sometimes, even if there is merit to the motion, the court may not dismiss the complaint or information. For instance, if the motion is based on the alleged defect of the complaint or information and such defect can be cured by amendment, the court shall order that an amendment be made (Sec. 4, Rule 117). Also, if the motion is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect through an amendment instead of dismissing the complaint or information. It is when the prosecution fails to make the amendment or when amended, the complaint or information still suffers form the same defect that the court will order a dismissal.(Sec. 4, Rule 117).

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3. There are times when after sustaining a motion to quash, the court may order that another complaint or information be filed. If the order is made, the accused who may be in custody will not be discharged except if he is admitted to bail. If the order sustaining the motion is made and no order is given to file another information or complaint, the accused who is in custody is to be discharged or released because there is no more charge against him, unless he is in custody for another charge. Also, if an order to file another complaint or information is made but no new one is filed within the time specified in the order, the accused is to be discharged unless he is in custody for another charge (Sec. 5, Rule 117). An order to file another information or complaint cannot be made when the ground for sustaining the motion to quash is either extinguishment of the criminal action or liability or double jeopardy (Sec. 5-6, Rule 117). 4. Note: an order sustaining a motion to quash is not a bar to another prosecution for the same offense unless the motion is based either on the extinguishment of the criminal action or liability or double jeopardy (Sec. 6, Rule 117). 5. Remember the elements constituting double jeopardy: (a) the accused has been convicted or acquitted or the case against him was dismissed or terminated without his express consent; (b) the court has jurisdiction; (c) there is a valid complaint or information; (d) there was plea to the charge upon arraignment (e) the accused is charged anew for an offense constituting an attempt or a frustration of the previous offense charged or for an offense that necessarily includes or necessarily is included in the former charge (Sec. 7, Rule 117). If the accused has been convicted or acquitted of robbery, he can no longer be charged with an attempted robbery or vice versa. If there is a dismissal of his case, to constitute double jeopardy, the dismissal must be without his express consent. Thus, if the information for homicide is dismissed pursuant to a motion to quash, the dismissal is not a bar to another prosecution for the same offense because the dismissal was with his consent unless for instance, the ground relied upon by the court for sustaining the motion is for instance extinguishment of the criminal liability. If the motion is sustained on the ground that the information was filed by one without authority to do so, a subsequent prosecution for the same offense will not constitute double jeopardy because the ground is akin to lack of jurisdiction. The court therefore, did not acquire jurisdiction over the offense charged. 6. Are there instances when double jeopardy will not arise and the accused may be prosecuted anew for an offense which includes the former offense charged despite his conviction for the latter offense? Yes. Example: AA was convicted of attempted homicide and was convicted. May he later on be possibly charged with consummated homicide? He may. This occurs if the graver offense(homicide) developed or occurred after conviction. Another instance is when the death of the victim was discovered after a plea was made in the former charge for attempted homicide. Still another is when assuming that there was a plea of guilty to lower offense, it was made without the consent of the offended party unless such offended party did not appear in the arraignment despite notice (Sec. 7, Rule 117).

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7. Provisional dismissal - When a case is provisionally dismissed, the case may be later on revived. A provisional dismissal of a case may be made provided the following requisites concur: (a) there is express consent of the accused, and (b) there is notice to the offended party (Sec. 8, Rule 117). These are the codal requisites for a provisional dismissal. When these are complied with, the time-line rule will now apply. This rule makes a distinction first, between offenses punishable by imprisonment of not more than six (6) years and second, those offenses punishable by more than six(6) years. In the first, the failure to revive the case after the lapse of one (1) year from the date of the issuance of the order of dismissal shall operate to make the provisional dismissal permanent. In the second case, the time limit is two (years) (Sec. 8, Rule 117). 8. The case of People vs. Lacson, 400 SCRA 267(April 1, 2003), has modified the requisites for a provisional dismissal, to wit: (a) the prosecution with the expressed consent of the accused moves for a provisional dismissal of the case; or both the accused and the prosecution move for the provisional dismissal (b) the offended party is notified of the motion for provisional dismissal of the case; (c) the court issues an order granting the motion and dismissing the case provisionally; and the public prosecutor is served with a copy of the order of provisional dismissal. Note also that under Sec. 8 of Rule 117, the one -year and two- year time line shall be counted from the date of the issuance of the order of dismissal. In People vs. Lacson the reckoning period starts from the service of the order of dismissal on the public prosecutor who has control of the prosecution. Accordingly, the public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal. OTHER SIGNIFICANT PRINCIPLES 1. A pre-trial is mandatory in criminal cases. The pre-trial shall be held after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The pre-trial in a criminal case does not include amicable settlement of the case as a purpose unlike a pre-trial in a civil case. The rule is that criminal liability cannot be compromised although the civil liability arising from the offense may be subject to compromise (Art. 2034, Civil Code).

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