Remedial Preweek Lecture
Remedial Preweek Lecture
Remedial Preweek Lecture
Plea Bargaining
• Can you do a plea bargaining in drugs cases?
• In the case of Estipona, the SC allowed plea bargaining in drugs cases for
rehabilitation. Even though Continuous Trials Guidelines says that, “Except in drugs
cases, plea bargaining is allowed,” the current ruling is the Estipona case.
• So the rule is: In criminal cases, during pre-trial, plea bargaining is allowed. Plea
bargaining includes plea of guilt to a lesser offence. For drugs cases, as ruled
by the SC in the case of Estipona, plea bargaining is allowed.
Probable Cause
• The determination of probable cause has two facets:
o The first one is the executive determination of probable cause.
§ The executive determination of probable cause is that period from when
a complaint was filed in the Office of the Prosecutor, subscribed by the
prosecutor, assigned to the Asst. Prosecutor and the Asst. Prosecutor
issues a subpoena requesting the respondent to file an affidavit within
the period of 10 days.
§ The findings of the Asst. Prosecutor is only recommendatory and
subject to the approval of the provincial or city prosecutor.
o The next is the judicial determination of probable cause.
§ This kicks in when the information is filed (Rule 112, Sec. 5) and the
court has any of the following options:
• (1) The court if finds probable cause issues a warrant of arrest,
• (2) The court will dismiss the case,
• (3) The court can conduct a hearing to ascertain if there is
indeed a probable cause.
• Can you file a motion for determination of probable cause? NO.
o There is nothing in the provision of the rule that allows you to do it. However,
in practice, they allow you to do it.
o For the Guidelines for Continuous Trial, that is prohibited.
§ Now, I want to be very clear, even if there is that guideline, there is
nothing in the law that allows you to file a motion to file a determination
of probable cause.
Preliminary Investigation
• What cases require preliminary investigation?
o When the penalty of the offense is at least 4 years, 2 months, and 1 day.
• Can you file a motion of preliminary investigation? Yes.
o Example: Your client was arrested without a warrant. Your client was detained.
And because your client was detained, you decided not to file for a preliminary
investigation at that time in order not slow down the process, so you allow the
process to continue. An information was filed against your client, can you file a
motion for preliminary investigation for your client who was arrested without a
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
warrant and an information being filed in court? The answer is yes. 5 days from
knowledge, the provision is Rule 112, Sec. 6.
Arraignment
• Can arraignment be suspended?
o Arraignment will only be scheduled after the court has acquired jurisdiction over
the person of the accused.
• How is jurisdiction acquired over the person by the court?
o By arrest or voluntary surrender. Once you are arrested (you can apply for bail)
or voluntary surrendered, the arraignment is set.
• Can that arraignment be suspended?
o The grounds of arraignment are only those found in the Rules of Court.
o According to the case of Daoay, what are the grounds?\
§ (1) The accused is of unsound mind,
§ (2) There is a prejudicial question,
§ (3) There is a petition for review filed in the Department of Justice and
the period is only 60 days.
o Arraignment can be suspended.
Public Prosecutor
• Is the presence of a public prosecutor always required? In any hearing in court, is it a
mandate of the law?
o The answer is in Rule 110, Sec. 5. The prosecution of a criminal case is under
the direct control and supervision of a public prosecutor.
o For that reason the public prosecutor will have to be present every hearing
date.
o Therefore, if the public prosecutor assigned to the court on that day is absent,
the cases, no matter how many there may be will have to be cancelled. Take
note, mere presence.
o The phrase, “Direct control and supervision” is not only because he will direct
the conduct of the prosecution. It includes his presence in the court for the case
to proceed.
§ That phrase, likewise includes filing of every pleading in court.
Therefore, the prosecutor cannot file any pleading, if there is a criminal
case, cannot file any pleading in that court without the conformity of the
public prosecutor.
o Example: In one case decided by the court, the public prosecutor was absent
because there was a need for him to be under medical examination. But the
prosecution’s presentation of evidence was already terminated. It’s already the
accused’s turn to present evidence but the public prosecutor was absent, the
court allowed the case to proceed on the condition that when the public
prosecutor returns, he can conduct his cross-examination. The public
prosecutor returned. Then the next hearing, he questioned the action of the
judge, saying such action is null and void. The Court held, that the proceedings
were null and void up to that extent because the public prosecutor was absent
because the prosecution of a criminal case is under his direct control and
direction.
o There is an exception, you can obtain a certification from the chief of the
prosecution office. So yung sinabi kong lahat na yan, na laging present, can be
dispensed with if you were able to get a certification from the chief of the
prosecution office allowing you to proceed even in the absence of a public
prosecutor. That is in Rule 110, Sec. 5.
Summary Procedure
• What is the threshold penalty?
o Imprisonment of not exceeding 6 months and if criminal negligence, damages
not exceeding 10,000 pesos. Summary proceeding, criminal includes violation
of municipal or city ordinances.
Sandiganbayan Jurisdiction
• Itong tatlo lang gusto kong tandaan niyo:
o (1) At least salary grade 27 and the act was committed in relation to the office.
So it can be an ordinary offense.
o (2) At least salary grade 27 and it’s an Anti-Graft case, RA 2019, which court
has jurisdiction? Sandiganbayan.
o (3) City counselor, not a salary grade 27
§ Does the Sandiganbayan have jurisdiction over the counselor? The
answer is yes. Because the name expressly appears in the list.
§ Take note, there are those officers which are not salary grade 27 but
they are expressly listed in the law, then jurisdiction falls within the
Sandiganbayan.
• What if the accused is a president of a State University or a Student Regeant? Is salary
grade 27 material? The answer is no. For as long as he is enumerated in the section,
a government owned and controlled corporation, state universities, presidents,
trustees, officers, they fall within the jurisdiction of the Sandiganbayan.
• Threshold Amount
o There’s an amendatory provision, if it exceeds 1 million, the damage to the
government, and you are a salary grade 27, Sandiganbayan.
o If the damage is lower than 1 million and you are a salary grade 27, it goes to
the regular courts.
Ombudsman
• The Office of the Ombudsman is not a court. It is an agency of the government that
exercises quasi-judicial functions. The jurisdiction of the Ombudsman is over the
misfeasance or the malfeasance of a public officer. Take note the offense need not be
in relation to the office.
• Can the Office of the Ombudsman conduct preliminary investigation?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Venue/Jurisdiction
• The Concept of Territoriality.
o Can the venue for purposes of institution of the action be transferred?
§ The answer is no because the venue is jurisdictional.
§ The place of where the crime was committed is the place of the where
the action is instituted.
§ What can be transferred is the venue for purposes of trial with the
approval of the SC.
• Yung pag file ng case, di mo pwedeng ilipat unless it’s the type
of case that can be filed with the DOJ.
• But the Rules of Court do not provide for those cases where you
can directly file with the DOJ.
• Like public interest cases, highly controversial cases which
affect the entire nation, the scam type of cases, then the DOJ
can take cognisance of the same. It has jurisdiction all over the
entire Philippines. But again, venue is jurisdictional.
Search Warrants
• In the case of Pilipinas Shell, they said that the application for a search warrant is a
special judicial process. Therefore, though, the manner which you could apply for a
search warrant is dictated by the place where the crime was committed, according to
Rule 16.
• The court ruled that the power to issue a search warrant is inherent in every court and
they are not bound by venue is jurisdictional.
Rule 110
- If you are in a chartered city, you file to Fiscal/office of prosecutor regardless if the
offense requires a preliminary investigation or not.
- Can a solicitor general intervene in a criminal case at the trial court level? NO.
Representation of solicitor general only starts at appellate court level.
o Senator Enrile was charged with plunder. He filed motion for bill of particulars
claiming that the NGOs and government agencies, specific dates of
commission, release dates of particular pork barrels etc must be indicated
o Sandiganbayan denied it. MR also denied
o SC: The information must include ultimate facts not evidentiary facts
o Defects claimed by enrile
§ Amount of pork barrel and dates of release must be indicated- SC: No,
Enrile is in better position to know that.
§ Series/combinations of acts- SC: Yes, these must be indicated or
particularized in the information
§ The dates when the plunder committed
§ The NGOS and conduits- SC: Yes.
§ In short, the SC granted the motion for Bill of Particulars
Amendment
- If amendment is the issue, you first determine if the accused has already entered his
plea
o Before plea: amendment can be done as to matters of substance AND form
o After plea: amendment only as to matters of form AND it does not prejudice the
rights of the accused.
§ e.g – in a case where the victim of rape is 19 but it appears that she is
actually 16. This can be a formal amendment but this will be prejudicial
to the rights of the accused. NOT ALLOWED
- before plea, a number of things can happen.
o The offense can be downgraded (e.g. murder to homicide)
o Exclusion (e.g. from 3 accused to 2 accused)
§ Downgrade and exclusion can happen only upon motion of the
prosecution and with notice to offended party and with leave of court
Substitution
Can an information be substituted? Yes. Allowed in Section 14
If there is a substitution, will it require a new preliminary investigation- YES!
If the amendment is a matter of form, will it require a new preliminary investigation? – NO!
How about if substantial amendment? – YES!
In a case decided by SC which involved Anti-Graft and Corruption, the prosecution wanted to
change “disadvantageous to the government” to “unwarranted benefits to a private party”. SC:
it does not need a new preliminary investigation because this amendment refers to the same
section and only involves a change in the modality of the commission of the offense.
What if civil arising from delict instituted ahead of the criminal action? - Civil action is
suspended in whatever stage with option to consolidate
Can you consolidate a petition for writ of amparo with a subsequent criminal action involving
the same subject of the writ of amparo? –YES!
Can you consolidate a petition for writ of amparo with a subsequent administrative case? –NO
Can you consolidate a a purely civil action but is totally unrelated with a petition for writ of
amparo? – NO
People v. Soria(?)
- Accused convicted in RTC and the case is on appeal
- Convict died pending appeal
- What happens to the criminal case?
- SC: criminal case including the civil aspect is extinguished
What happens if the accused dies before plea? –criminal case will be dismissed without
prejudice to filing of a case against the estate
There’s a criminal case and an independent civil case. The accused dies. The criminal case
is extinguished but the independent civil case survives. (Section 4, Rule 111)
Prejudicial questions
At what point in time can you file a motion to suspend on the ground of prejudicial question?
- If still in the prosecutor’s office for purposes of preliminary investigation
- Before the prosecution rests if already filed in court
The civil action must be instituted ahead the criminal. The criminal case is suspended.
If criminal case has been suspended for a long period of time. Can it be dismissed? – No. it
will be archived.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
TAKE NOTE:
For offenses requiring preliminary investigation, once the case has already been filed in court.
The court has option:
- Issue a warrant or
- Dismiss the case
What if the offense does not require PI (refers to Rule 112, 3a only)
When the information is filed, the court can:
- issue warrant or issue subpoena in lieu therof
- dismiss the case
- hear it
Once a case if filed in summary procedure, can the court issue warrant of arrest? – NO!
If after repeated notices to appear is given but the accused refused repeatedly- court can issue
warrant of arrest
Will the records of PI under Rule 112, Sec. 7 form part of the records of the case? –NO! Secure
an order from court to elevate the records to the proper court
Inquest
Relevant provision is Section 5, Rule 113
- may naglalakad sa Rockwell ng gabi, hinuli ng pulis for prostitution
- will he be subjected to inquest? NO
- Only offenses that require PI where inquest is relevant
What is the duty of the inquest prosecutor?
- Will NOT determine probable cause
- Will determine if you should be released (not dismiss) for regular PI or detained
- - if detained, you can ask PI waiving Art 125 or post bail
§ In multiple cases
§ If the accused has been properly informed of the consequences thereof
§ It appears in the certificate of arraignment and the order of the court
• What is your remedy from a finding of probable cause of the City or Provincial
Prosecutor?
o File a Petition for Review to the Department of Justice
o Here is a very specific question from the time of De Lima: Where do you go if
the offense falls within the jurisdiction of the MTC and you want to appeal the
resolution of the City or Provincial Prosecutor? Where will you go?
§ If Metro Manila – the Prosecutor General
§ If outside Metro Manila - Regional Prosecutor
Warrant of Arrest
• Can a warrant of arrest be applied for in anticipation of a crime?
o Definitely NOT! Because you have to go through the process of preliminary
investigation before a warrant of arrest can be issued. You cannot just apply
for a warrant because you are expecting that a person will commit a crime.
o There are only two (2) scenarios contemplated by the Rules of Court:
1) Warrant of arrest – which has undergone through the process of
preliminary investigation
2) Warrantless arrest
• Can a person who was legally arrested but escapes from custody be rearrested without
need of a warrant?
o Yes
Bail
• Can a person detained for a nonbailable offense be released upon the issuance of a
custody receipt?
o No, he cannot.
§ If it is a bailable offense, the only way the accused can be released is
by posting bail.
§ If it is a nonbailable offense, the process is more rigid.
• In the case of Enrile, Enrile was charged with plunder (nonbailable offense). He filed a
Motion to Admit Bail, which was denied by the Sandiganbayan because it was a
nonbailable offense. When it reached the SC, it granted bail because of his physical
condition and that he is not a flight risk because he has previously submitted to the
jurisdiction of the court. This deviates from the rules.
o You will only answer in accord with the Enrile case if the facts are similar
because it is not in accord with the general rules on bail
o There was not even a bail hearing to give the prosecution an opportunity to
present evidence that guilt was strong
• If X was charged with murder but convicted of homicide, where will you apply for bail?
(Leviste case)
o Apply for bail before the appellate court (Rule 114). If you were charged with a
nonbailable offense, but convicted of a bailable offense, you will apply for bail
before the appellate court
• If you have a case in Makati and was arrested in Makati Avenue, where can you apply
for bail?
o In the court where the action is pending (Sec. 17, Rule 114)
o If the judge of court where the action is pending is absent, you may apply for
bail with any RTC or MTC judge in Makati
• If you have a case in Makati and you were arrested in Cavite, where will you apply for
bail?
o In Cavite (where he was arrested), before any RTC judge, or
§ In the absence of any RTC judge, you may apply for bail with any MTC
judge in Cavite
o In the court where the action is pending
• Where may you apply for recognizance?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Prescription
• When will the prescriptive period be interrupted?
o Once it is filed in the Office of the Prosecutor, the period is interrupted
o What about special laws?
§ BP 22 – upon filing in the Office of the Prosecutor
§ Securities Act – upon filing in the SEC
o What about city ordinances?
§ Only when the Information is filed in court (Jadewell Parking)
§ The rule is different because violation of city ordinances fall under the
Rule on Summary Procedure
Counsel de Officio
• Counsel de Parte – the counsel of choice of the accused
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
• Counsel de officio - counsel who is appointed by the court if the accused cannot afford
to engage counsel de parte or his own counsel
• In an appeal from a criminal case, even before the records of the case are forwarded
to the next-level courts, it the duty of the clerk of court to attest that he has inquired
whether the accused wants a counsel de officio
o Is the accused entitled to counsel de officio at the level of the CA?
§ Yes, if he signs his own appeal or the accused is detained (Rule 124)
o Is the accused entitled to counsel de officio at the level of the CA?
§ Yes
• When should the right against self-incrimination be invoked?
o At the time the prosecution tries to call the accused to the witness stand,
because the accused cannot be compelled to testify against himself. Hence,
the accused may refuse the take the witness stand altogether
o How about an ordinary witness?
§ He may only invoke the right against-self-incrimination when the
questions are propounded to him
Improvident Plea
• An improvident plea is a plea the consequences of which are not known to the
accused. It may be withdrawn by the accused at anytime the judgment becomes final
and executory
• What if the judgment has already becomes final and the accused appeals?
o If the sole basis of the conviction is the improvident plea, the SC will simply
remand the case for further proceedings
o If there is independent evidence to establish the culpability of the accused, the
SC will render a decision.
Arraignment
• Can the filing of a motion for reconsideration in the Office of the Prosecutor suspend
the arraignment?
o No
Order of Amendment
• Can the court instead of quashing the information in a motion to quash order an
amendment? Yes if the ground is it does not constitute an offense.
• Can the motion to quash be filed after plea?
o Yes on four grounds: lack of jurisdiction, it does not constitute an offense,
prescription, double jeopardy.
Double Jeopardy
• What are the requisites?
o 1) there is a valid complaint and information
o 2) there is a court of competent jurisdiction
o 3) arraignment and plea
o 4) acquittal, conviction, or dismissal without the consent of the accused.
• Instances when there is already a plea but double jeopardy does not kick in
o Even after entering of the plea, there was a supervening event.
§ Example: The person was just stabbed, he was in the hospital
frustrated homicide, after a month he died, homicide. Double jeopardy?
No. Supervening event. How about the graver offense was only
discovered after the plea? The person was charged with homicide
because the body of the victim was recovered. Later on it was
discovered that the victim what his father. Parricide? Yes. No double
jeopardy. Finally, if there is a plea to a lesser offense if it is without the
consent of the offended party then it will have no effect.
§ If the lawyers are absent but the accused is present, the lawyers can
be sanctioned.
§ Can an oral admission be taken against the accused during pre-trial?
No. Because it should be in writing and signed by the accused and
counsel.
o Next, Mediation.
§ I will withdraw the word mediation, I will use the word “compromise”.
§ This is Rule 130 Section 26 27 on the Rule on Evidence.
§ As we say an offer of compromise in a criminal case is an admission of
criminal liability.
• But of course we cannot deny that there are offenses which are
mediatable as to the civil aspect.
• Example: SSS, BP 22, PAG_IBIG, remittance payments, estafa
and all other forms of swindling except large scale. What else?
Libel, simple slander, grave slander, slander by deed, and
publications of that nature. Mediatable? Yes. It is allowed by law
to be compromised as to the civil aspect.
§ If the civil aspect of a case is settled, what happens to the criminal
aspect?
• The criminal will continue to survive except part of the
compromise is for the offended party to execute an affidavit of
desistance.
• If the Court is convinced that the affidavit of desistance is
voluntarily made after the prosecution moves for the dismissal,
then the case will be dismissed and jeopardy will be attached
because the dismissal is not without express consent of the
accused.
o Last, Trial.
§ The period from arraignment to pre-trial is the period of 30 days and
that is the same even under the continuous trial rule counted from the
time the court acquires jurisdiction over the person of the accused. Now
the period of trial which is consistent with continuous trial is the period
of 180 days.
§ Why are there still long term cases? 3-5years?
• It is because of exclusions. Like for example the accused is of
unsound mind, extraordinary remedies that will delay the
proceedings of the case like petition for certiorari, delays by
reason of pre-trial which is not attributable to the parties, delay
by reason of pre-trial not exceeding 30 days, pendency of other
criminal cases that will cause delay, or absence or unavailability
of witnesses. All of these are valid exclusions
• Speedy trial can only be used in a criminal judicial proceeding. Speedy disposition can
be used in judicial, quasi-judicial, and administrative cases.
• Both of them if granted will have the result of an acquittal.
• If your motion for the dismissal of speedy trial is denied, your remedy is prohibition or
certiorari. If your motion for the dismissal of speedy disposition and your client is
detained and is denied, your remedy is habeas corpus. Even if the motion was filed by
the accused.
Demurer to Evidence
• What is the effect of grant of demurer of evidence? It amounts to an acquittal.
• Can a denial of a demurer to evidence be subject to a petition for review or an appeal?
o This is the Gloria Macapagal case.
§ The general rule is no based on the provision of the law.
§ However the Gloria Macapagal Arroyo is a special case. It was denied.
It was elevated to the Supreme Court then it was granted by the Court.
However the provision of the law says that a denial of demurer to
evidence cannot be subject of an appeal or a petition for certiorari.
Promulgation of Judgement
• Should the accused be present during the promulgation of judgment?
• The general rule is yes.
o The only exception is if an accused is charged with a life offense.
• So what if the effect if he is absent?
o If the decision is adverse to him, his remedies under the law are forfeited unless
he appears during the reglementary period and explain to the court the reason
for his absence.
Acquittal
• What are the types of acquittal?
• According to Section 2 of Rule 120, you could be acquitted
o when there is absolute failure to prove your guilt, OR
o when there is failure to establish guilt beyond reasonable doubt.
• In either case you could be held civilly liable unless there is a statement from the
judgment that the fact from which the civil liability arise does not exist
Modification of Decision
• Can a decision be modified?
o Yes. At any time before judgment of conviction becomes final and executory
Search Warrant
• How to apply for a search warrant?
o You have to apply to the court wherein whose territorial jurisdiction the crime
was committed.
o Second, for compelling reason, you can go out of the court wherein whose
territorial jurisdiction the crime was committed for as long as the search warrant
will be implemented within the regional jurisdiction
• Could there be a search warrant that could be implemented or enforced in the entire
Philippines?
o Yes. If it is applied for before an executive judge of Quezon City, an executive
judge of Manila, it involves AMLA, intellectual property, heinous crime,
dangerous drugs, illegal gambling, and those types of cases.
• Requisites:
o 1) a search warrant could only contain one offense, it cannot be multiple
offenses,
o 2) there should be probable cause to be determined by the judge personally –
personally examining the applicants and the witnesses he may produce.
§ It cannot be just submitting affidavits/depositions
o 3) the place to be searched must likewise be described, the things to be seized
must likewise be described.
§ Example: Unidentified amount of marijuana is that a sufficient
description? Yes. How about a description in reference to a motorcycle?
Let’s say they were using Honda with a certain variance CX5 would that
be a sufficient description? Yes that is sufficient.
• Execution
o The search warrant must be served upon the occupant or his relative.
§ If the occupant or relative is absent, it will have to be presented to two
witnesses with sufficient age and discretion residing in the community.
o If items are seized, it is the duty of the officer to leave a receipt to the occupant.
§ In the absence of the occupant or the relative, the receipt should be left
in the premises in the presence of two witnesses with sufficient age and
discretion residing in the community.
o Is that requirement of presenting a search warrant or that search be conducted
in the presence of two witnesses necessary in a buy-bust operation? No.
because that is not a search by reason of a warrant but a search as an incident
of a lawful arrest.
• Quashing a search warrant
o Can you quash a search warrant? Yes.
o What if the items have already been seized and you don’t want to court to
consider it? You believe that they are inadmissible.
§ You file a motion to suppress.
§ Where to file it? If a criminal action has already been instituted and the
search warrant was applied in that court, you apply the motion to quash
or the motion to suppress in that court where the action is pending.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
§ However, when there is yet no criminal case pending, you apply the
motion to suppress in the court that issued the warrant of arrest.
§ What if there is already a criminal action but of course there was a court
that issued the search warrant.
• You are to apply it there in that court which issued the search
warrant only after inaction can you go to the court with the
criminal case subject of the search warrant.
My last statement in Criminal Procedure is this: Bear in mind that the provisional remedies in
Civil, apply in Criminal Cases. That’s the basic Rule.
Sec 2 of rule 127 tells you the grounds to apply for a provisional remedy of attachment in
instances when the accused absconds, when the accused is not a resident of the Philippines,
embezzles or misappropriates, or when the accused conceals, removes or disposes of his
property.
The most common example when you talk of application of preliminary attachment in criminal
cases is an example of Estafa.
EVIDENCE
2. In Character Evidence
In Criminal cases, the prosecution cannot present the bad character of the accused, it can
only presented by the prosecution during rebuttal.
in civil cases, either party can present character evidence for as long as it is an issue in the
civil case.
Special Rule on Character evidence for witnesses (Rule 132 sec 14)
Good or bad character of the witness can only be presented when it is impeached.
Take note that there is a different mode of appeal in cases of Death, Life Imprisonment, and
Reclusion Perpetua.
Take note of the mode of appeal because they may vary whether it be civil or criminal.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Removal of judges?
Clear and convincing evidence
CONDITIONAL CURATIVE
for the court to reject an evidence offered he must so state in the form of an objection. In this
case, an appeal has already been filed and so the Court said that it has already been waived.
Concept of admissibility
Evidence is admissible if:
1. It is relevant
2. It is competent - not excluded by the rules
After trial, before judgment or on appeal, the court can take judicial notice but only if it is
decisive of the outcome of the case.
ex:
The witness states that he saw the face of the accused because it was a full moon. In line with
the statement of the witness, the defence would want to prove that it was not a full moon at
the specific day and time that the witness said he saw the accused.
JUDICIAL ADMISSION
• requires no presentation of evidence
• May include any type of admission made in court
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
ex: In a complaint where there is an actionable document attached and there is no specific
denial under oath.
During PRETRIAL, offer for stipulation, depositions, made in the conduct of examination of
witnesses require no more proof.
Admission v. Confession
ADMISSION CONFESSION
Whether or not to follow rules in custodial investigation (i.e., presence of counsel and
in writing)
EXTRAJUDICIAL EXTRAJUDICIAL
ADMISSION CONFESSION
Made before a No No
private individual
CASE LAW
Police officers were investigated administratively for what was claimed to be misconduct in
the commission or performance of their duties. The police said that it was a violation of their
rights because they were not assisted by a counsel.
Court: this is an administrative investigation and not an in-custody situation therefore the strict
requirement of custodial investigation will NOT apply. But because it is an administrative
investigation, i will have to follow the rule on Ang Tibay that pronounced the requirement of
administrative due process.
OBJECT EVIDENCE
When you present an object in Court, you are presenting it not for the purpose of the witness
but for the perception of the Court. The goal is to make the Court see it. If the object is of such
a nature that it cannot be moved from one place to another or it has been immobilized, you
can recommend an ocular inspection.
Our jurisprudence, when it talks about object evidence, would often refer to chain of custody.
Whether it be drugs, video, or audio (recording chain of custody). The rules may vary a little
depending on the object.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
DEMONSTRATIVE EVIDENCE
• These are evidence of a secondary character.
• These are pieces of evidence that will aid the court
• These are not the evidence that wear taken in the scene of the crime, or that were used in
the commission of the offense
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
DOCUMENTARY EVIDENCE
REMEMBER:
1. Best evidence rule
2. Secondary evidence rule
3. Parole evidence rule
WHAT IS REQUISITES
PRESENTED
BEST When the
EVIDENCE contents of the
RULE document is the
subject of the
inquiry, then you
have to present
the original.
RATIO: Memory
can falter.
In the absence
of the original,
there could be
fabricated
documents that
can be
presented.
SECONDARY 1. In case of May present 1. Establish
EVIDENCE loss or the following in the
RULE destruction of this order: existence
the document a. A copy of the
without fault on b. Recital in document
the part of the some 2. Establish
offeror, authentic the
documents execution
c. Testimony of the
of document
witnesses 3. Establish
that it has
been lost
or
destroyed
with no
fault on the
part of the
offeror.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
WHAT IS REQUISITES
PRESENTED
2. If the May present 1. Establish
document is in the following in the
the custody of this order: existence
the adverse a. A copy of the
party. b. Recital in document
some 2. Establish
authentic the
documents execution
c. Testimony of the
of document
witnesses 3. There has
been
notice to
the other
party who
is in
possession
of the
document
to produce
it.
4. Despite
timely
notice, he
did not
produce it.
3. Long and
voluminous
records and
documents
RATIO: It only
establishes a
general fact or
result. The
content is not in
issue.
Ex: Prove the
income for the
last 15 years -
all invoices are
not needed.
4. That the a. Certified
document is in True Copy –
the custody of a substitutionary
public officer or evidence
recorded in a
public office.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
WHAT IS REQUISITES
PRESENTED
PAROLE What is in the
EVIDENCE document is the
repository of
what the parties
have agreed
upon.
EXCEPTIONS:
There are times
when what is
included in the
document in not
exactly what the
parties have
agreed.
Shangri-La Case
Do you need to present the Original if what is to be established is whether the document
exists?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
NO. When the matter subject of the inquiry is not the content of the document but whether or
not it exists, the Original need not be presented. A photocopy would suffice. Therefore there
are other evidence that can be used like testimonial evidence, photocopy of the original
document, or a USB that would show such, or a microfilm.
TRANQUIL: When I say “EXCEPTIONS” to the Best Evidence Rule, I am talking about
Secondary Evidence already.
ORIGINAL EVIDENCE
• Where the contents of the document is the subject of the inquiry
EX:
a. entries made in the regular course of business at or near the time of the transaction
b. execution of documents of what you call duplicate originals at or about the same time.
TESTIMONIAL EVIDENCE
• Who are qualified to be witnesses
1. Those who are able to perceive and
2. Perceiving could make known his perception to another
§ Only requisite; Not required to be educated or able to read and write
§ Can a deaf-mute testify?
• YES. In the case of People v. Aleman, if the deaf-mute was able
to perceive with his remaining senses, and upon production in
Court, can make known his perception in Court.
• Child Examination Rule (Tacorda v. Clemens)
o The duty of the judge is to conduct a competency examination.
§ Ascertain that the child is
• able to perceive
• make known his perception to another
• knows the consequences of his actions and what is right from
what is wrong
o Consistent with Rule 132, you could ask leading questions.
o Applies in civil, criminal, and administrative cases
• Other disqualifications
1. By reason of marriage
§ Valid and pre-existing marriage
• EXCEPTION: Even if you remain to be married, but your
relationship is so strained and there is no union to protect, then
disqualification cannot be invoked.
§ Only extends during the time of marriage
2. Dead man’s statute
§ Who are disqualified
• Parties to a case
• Assignors to parties of a case
§ Applies only to cases that involves a claim against the estate of
• a deceased person or
• a person of unsound mind
§ What other evidence may be used?
• Documentary evidence (Sanson)
• Testimonial evidence as to witnesses to the transaction, who did
not take part in the transaction
• Privileged communication
1. Penitent and Priest Privilege
§ Limited application to religious institutions and orders which require a
confession i.e. Roman Catholic
§ Must be enjoined by religious institutions to which they belong
§ As to pastors and reverends, the disqualification does not apply.
2. Doctor and Patient
§ Requisites
a. That the doctor received information
b. Information was necessary for the doctor to give treatment and
advice
c. Information, not the illness, if exposed, would blacken the
reputation
§ Only extends to civil cases, not criminal cases
§ Privilege in favor of the patient
§ Waiveable in the instance of the patient
§ Is a laboratory record covered by the privilege?
a. YES, if necessary for the doctor to give treatment and advice.
§ Case: Wife wanted to subpoena the medical records of the husband to
prove the latter has a mental problem to obtain a declaration of nullity
of marriage. SC did not answer it directly; declared such premature
because not yet in trial. However, this might be instructive. The SC said
that if it were a production of books, papers, and documents under Rule
27, privileged communication may be invoked.
3. Attorney-Client
§ Requisites
a. That there should be an attorney-client relationship
b. That the information received by the attorney in view to or in the
course of
c. Disclosure of material information
§ Conflict of interest?
a. An attorney-client relationship must be clearly established.
§ That which is covered by this privilege are all the information received
by the lawyer in his professional capacity.
§ Only the privilege under the law where you will find an agency, thus
extends to the stenographer, secretary, or Clerk of Court
a. Waiveable? YES, only in the instance of the client and the
lawyer.
4. Spousal privilege
§ Requisites
a. Valid and existing marriage
b. Information received in confidence
§ Even after the dissolution of marriage, can the privilege be invoked?
YES.
• Can a witness be compelled to testify when it raises a civil claim against him?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
Admission Declaration
Person to attest to the act, declaration or Person is dead or unavailable to testify
admission is present to testify
• Self-serving Statement
o Unsworn statements made out of court
o Inadmissible? YES, for reasons of being hearsay.
• Judicial Privilege
o Privilege of the judiciary; Cannot open the records of a case
o Could be invoked by any judge or justice of the court
o Waiveable only upon the instance of the Supreme Court en banc
• Admission by silence
o Villanueva v. Balaguer
§ There was a publication and A suspected he was the one being
pertained therein. The publication said there was someone in this
company that removed this person. So when A read the publication, he
wrote a letter saying “We would like to inform you that the Operations
Executive you referred to in the press statement is not our client. We
shall construe your failure to reply within 48 hours from receipt of
this letter as your unequivocal admission that you are in fact
referring to my client.” The publication did not respond. Is there an
admission by silence? SC held that petitioner’s argument lacks merit.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
One cannot prove his claim by placing the burden of proof on the
other. He cannot make an evidence just by writing a letter to another.
§ The rule on admission by silence applies to adverse statements in
writing if the party was carrying on a mutual correspondence.
• Hearsay
o Is there a presumption of hearsay? No.
o What is an independent relevant statement?
o Two kinds of independent relevant statements:
1. Based on the fact in issue; and
2. Based on circumstantial evidence of the fact in issue.
o Example: I told Mr. A I stabbed X. Can Mr. A testify? Yes, as to the fact that I
narrated to him that I stabbed X. That is not hearsay. That is an independent
relevant statement. But as to the truthfulness of whether or not I stabbed X,
that will have to be established independently.
• Dying declaration
o The person making the declaration is under the consciousness of an impending
death. He is aware that he’s dying.
o He will only narrate matters and circumstances surrounding his death. Other
matters are useless.
o The dying person should be competent if he were to testify.
o The recipient of the declaration should likewise be competent.
o Does the principle of a dying declaration extend to civil cases? Yes.
o What if declarant eventually survives (i.e. due to timely medical intervention)?
That will be considered as res justae.
o If the dying person testifies, that is not res justae; that is personal knowledge.
o What is res justae? The recipient of the declaration who will later testify as to
his condition when he believed himself to be dying.
• Declaration as to pedigree
o Pedigree is the history of family descent.
o The person is dead or unavailable to testify.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
o Should the witness be a relative of the declarant? No. But declaration should
have been made prior to the controversy.
o Person whose pedigree is in issue should be related to the declarant by birth
or marriage. And relationship should be a legitimate relationship.
• Reputation
o How people perceive you to be
o On family reputation, who should testify? Any member of the family, prior to the
controversy.
o Common reputation
§ Public or general interest
• Public – common to all citizens of the State
• General – common to a single community
§ As to marriage
§ As to moral character
• Official records
o In government offices as an exception to the hearsay rule: Yes, because such
official records are prima facie evidence of what are contained therein.
• Commercial list
o Requisites:
a. Used by the members of the profession; and
b. Relied upon.
o Example: SCRA
• Learned treatises
o Scholarly works on fields of history, science, law and the arts
o Why is it hearsay? Because author will not be presented in court.
o Who will be presented? Court has an option.
a. Judicial notice
b. Expert in the field in the Philippines to attest to the expertise of the
author
• Expert evidence
o Expert is not required to be schooled or a degree holder. Minimum requirement
of law is special skill, knowledge and training
o But witness has to be qualified.
o Ordinary witness gives an opinion.
o Party can give an opinion on behavior, emotion, condition and appearance.
• Conclusive presumptions
o Estoppel in paise
§ Requisites:
a. Lack of knowledge and means of knowledge of the truth
b. Relied upon the conduct of the other party; and
c. Acted on the matter.
o Estoppel by deed – estoppel at the time of execution of the document
• Burden of proof
o Means the obligation imposed upon a party who alleges the existence of a fact
or thing necessary in the presentation, prosecution or defense of an action to
establish it by proof
• Burden of evidence
o Logical necessity that rests upon a party at any particular time during the trial
to create a prima facie case in his favor
• Presumption
o Inference of the existence or non-existence of facts which the court is required
to draw from the proof of other facts
o Examples: presumption of regularity of duty, presumptive death after 7 years
for purposes other than succession, presumptive death after 10 years for
purposes of opening the estate, presumption on survivorship based on age and
strength of the sexes
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
o Will survivorship apply to succession? No. The provision of the law says
“except as to matters of succession.” In succession, whoever alleges the death
of one over the other will have to prove it. In case of absence of proof, they are
deemed to have died at the same time. (Rule 131)
o Disputable presumption arises because certain facts exists and until such time
as it is destroyed, it remains a disputable presumption.
o Presumption vs. prima facie evidence
§ Presumption is just an inference on a set of facts.
§ Prima facie evidence is an amount of evidence sufficient in a particular
case to pass a judgment
o Classifications of presumptions:
1. Conclusive
2. Disputable
o Rule 132
o 3 sets:
1. Sections 1-18: conduct of proceedings in court
2. Sections 19-33: authenticity of documents
3. offer of evidence
o Proceedings in court have to be recorded.
o Primary mode of recording: steno-type or stenography
o Every witness said to be qualified must be placed under oath or affirmation.
o Examination of witnesses: direct, cross, redirect and recross
o Judicial Affidavit Rule: MTC
o All civil cases today, judicial affidavit
o In criminal cases, if penalty does not exceed 6 years, judicial affidavit: MTC.
o Continuous Trial Rule added affidavits of law enforcements officers and
affidavits during preliminary investigations.
o In criminal cases, if penalty exceeds 6 years, under Judicial Affidavit Rule, it
should be by oral presentation of witnesses except if the accused consents.
o Continuous Trial Rule said if demeanor evidence is not required, if the evidence
is just documentary, and if it is transactional in nature (malversation,
falsification, estafa), judicial affidavit will be accepted. But all eyewitnesses will
have to be oral testimonies in court.
o Can you object to the questions in a judicial affidavit? Yes, before you conduct
your cross-examination.
o Purpose of direct examination is to establish the evidence in chief.
o Purpose of cross examination is to elicit information, to impeach
§ Ways to impeach (Sections 11 and 13)
• Prior inconsistent statement
• Contrary evidence
• General reputation for truth, honesty and integrity is bad
o Matters in cross examination should be limited to matters subject to direct
examination.
o Purpose of a redirect examination is to ask the witness to supplement or to add.
Section 16. When witness may refer to memorandum. — A witness may be allowed to
refresh his memory respecting a fact, by anything written or recorded by himself or
under his direction at the time when the fact occurred, or immediately thereafter, or at
any other time when the fact was fresh in his memory and knew that the same was
correctly written or recorded; but in such case the writing or record must be produced
and may be inspected by the adverse party, who may, if he chooses, cross examine the
witness upon it, and may read it in evidence. So, also, a witness may testify from such
writing or record, though he retain no recollection of the particular facts, if he is able to
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
swear that the writing or record correctly stated the transaction when made; but such
evidence must be received with caution. (10a)
Section 17. When part of transaction, writing or record given in evidence, the remainder,
the remainder admissible. — When part of an act, declaration, conversation, writing or
record is given in evidence by one party, the whole of the same subject may be inquired
into by the other, and when a detached act, declaration, conversation, writing or record
is given in evidence, any other act, declaration, conversation, writing or record
necessary to its understanding may also be given in evidence. (11a)
Section 18. Right to respect writing shown to witness. — Whenever a writing is shown
to a witness, it may be inspected by the adverse party. (9a)
Section 19. Classes of Documents. — For the purpose of their presentation evidence,
documents are either public or private.
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledge before a notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines, of private documents required by law
to the entered therein.
• Asian Terminal vs. Philam Insurance: Public documents are self-authenticated and
do not further require any authentication in order to be presented as evidence in
court. Hence if it is a private document recorded in a public office, just present a
certified true copy.
• Riosa vs. La Suerte: Notarial document is evidence of the facts stated therein. And has
a presumption of regularity. Irregular notarization downgrades the document into a
private document and needs to be evidenced.
Section 20. Proof of private document. — Before any private document offered as
authentic is received in evidence, its due execution and authenticity must be proved
either:
Any other private document need only be identified as that which it is claimed to be.
(21a)
• A medical certificate is hearsay if its probative value is not based on the knowledge of
the witness but on the knowledge of another person.
Section 21. When evidence of authenticity of private document not necessary. — Where
a private document is more than thirty years old, is produced from the custody in which
it would naturally be found if genuine, and is unblemished by any alterations or
circumstances of suspicion, no other evidence of its authenticity need be given. (22a)
Section 24. Proof of official record. — The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having the legal custody
of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the
record is kept is in foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office. (25a)
Section 25. What attestation of copy must state. — Whenever a copy of a document or
record is attested for the purpose of evidence, the attestation must state, in substance,
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
that the copy is a correct copy of the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of the attesting officer, if there be
any, or if he be the clerk of a court having a seal, under the seal of such court. (26a)
Section 26. Irremovability of public record. — Any public record, an official copy of
which is admissible in evidence, must not be removed from the office in which it is kept,
except upon order of a court where the inspection of the record is essential to the just
determination of a pending case. (27a)
Section 28. Proof of lack of record. — A written statement signed by an officer having
the custody of an official record or by his deputy that after diligent search no record or
entry of a specified tenor is found to exist in the records of his office, accompanied by
a certificate as above provided, is admissible as evidence that the records of his office
contain no such record or entry. (29)
Section 29. How judicial record impeached. — Any judicial record may be impeached
by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion
between the parties, or (c) fraud in the party offering the record, in respect to the
proceedings. (30a)
Section 31. Alteration in document, how to explain. — The party producing a document
as genuine which has been altered and appears to have been altered after its execution,
in a part material to the question in dispute, must account for the alteration. He may
show that the alteration was made by another, without his concurrence, or was made
with the consent of the parties affected by it, or was otherwise properly or innocent
made, or that the alteration did not change the meaning or language of the instrument.
If he fails to do that, the document shall not be admissible in evidence. (32a)
Section 32. Seal. — There shall be no difference between sealed and unsealed private
documents insofar as their admissibility as evidence is concerned. (33a)
Section 34. Offer of evidence. — The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be specified.
(35)
• For testimonial evidence, before the witness testifies, the evidence must first be offered
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
• But for exhibits, e.g. objects, formal offer should be on the last day of the presentation
of witnesses (following the continuous trial and judicial affidavits rule). Therefore we
have: Exhibit Letter; Purpose; Then the court decides.
Section 35. When to make offer. — As regards the testimony of a witness, the offer must
be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's
testimonial evidence. Such offer shall be done orally unless allowed by the court to be
done in writing. (n)
An offer of evidence in writing shall be objected to within three (3) days after notice of
the unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified. (36a)
• An objection should be raised at the very first instance that the question seems to be
objectionable. Else, the remedy is to move to strike out the answer. The judge need
not give the reason for ruling on an objection.
Section 38. Ruling. — The ruling of the court must be given immediately after the
objection is made, unless the court desires to take a reasonable time to inform itself on
the question presented; but the ruling shall always be made during the trial and at such
time as will give the party against whom it is made an opportunity to meet the situation
presented by the ruling.
The reason for sustaining or overruling an objection need not be stated. However, if the
objection is based on two or more grounds, a ruling sustaining the objection on one or
some of them must specify the ground or grounds relied upon. (38a)
Section 39. Striking out answer. — Should a witness answer the question before the
adverse party had the opportunity to voice fully its objection to the same, and such
objection is found to be meritorious, the court shall sustain the objection and order the
answer given to be stricken off the record.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
On proper motion, the court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper. (n)
RULE 133
Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled
to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a degree of proof, excluding possibility of error,
produces absolute certainly. Moral certainly only is required, or that degree of proof
which produces conviction in an unprejudiced mind. (2a)
(b) The facts from which the inferences are derived are proven; and
Section 6. Power of the court to stop further evidence. — The court may stop the
introduction of further testimony upon any particular point when the evidence upon it
is already so full that more witnesses to the same point cannot be reasonably expected
to be additionally persuasive. But this power should be exercised with caution. (6)
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
WRIT OF AMPARO
• It is available to any person whose life, liberty and security is violated or threatened
with violation.
• Where to file:
o RTC, SB, CA, SC
• Where is it returnable?
o RTC: RTC judge himself
o CA/SB: CA or SB or RTC
o SC: SC or CA or SB or RTC
• If on its face the judge believes, he can grant it. In case of urgent necessity, judge or
justice can grant it under his own hand and may deputize someone to serve the same.
• Proceeding is summary. Date and time shall not be more than 7 days from the
issuance of the writ.
• If there is refusal to serve the writ, he could be held liable for contempt and
administratively liable.
• The writ should contain lawful defenses or steps or action taken to determine the
whereabouts of the person
• Intention: bring the person whose whereabouts are not known to the eyes of the law
• Period to render judgment: 10 days from the time petition is submitted for decision
• Interim reliefs: (1) TRO which can be granted by the courts motu proprio or upon motion
wherein the aggrieved party can be placed and protected in a government agency; (2)
inspection order upon a verified motion which will allow an entry into the premises; (3)
production order of books and documents in connection with the missing person; (4)
witness protected order
• It is a remedy available for violation of one’s privacy or right to life, liberty and security,
and this extends to information about himself, his family or his home.
• Where to file:
o RTC, SB, CA, SC
• When will the court impose contempt: refusal to file a return or disobeys the court. The
degree of evidence required is substantial evidence
• In the matter of issuance of a writ of Amparo of Lilibeth Ladaga: The summary nature
of amparo proceedings, as well as, the use of substantial evidence as standard of proof
shows the intent of the framers of the rule to address situations of enforced
disappearance and extrajudicial killings, or threats thereof, with what is akin to
administrative proceedings.
In this case there was a certain measure of flexibility. The reason is difficulty to get
evidence.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)
This measure of flexibility in the admissibility of evidence, however, does not do away
with the requirement of substantial evidence in showing the State's involvement in the
enforced disappearance, extrajudicial killing or threats thereof. It merely permits, in the
absence of hard-to-produce direct evidence, a closer look at the relevance and
significance of every available evidence, including those that are, strictly speaking,
hearsay where the circumstances of the case so require, and allows the consideration
of the evidence adduced in terms of their consistency with the totality of the evidence.
Datukan Malang Salibo vs. Warden of Quezon City: In this case, a petition was filed in
CA. Now the question is can the petition of a writ of habeas corpus be returnable to
the RTC? Yes.
In this case, Salibo was detained. The warrant or arrest contains a different name.
Should the writ of habeas corpus be granted? Yes. Because he as detained not for a
lawful purpose and because it is a question of wrong identity.