criminal procedure lecture notes

7/27/2019 Criminal procedure lecture notes

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Criminal Procedure

2/5/13 - ARREST

-Before going to the Rules on Arrest i would

like to give the idea of CHECKPOINT.

- now in fact is a very good subject matter ofbar exams

- first & foremost not all checkpoints are

illegal offense

- the first case that drop out in the history of

our judicial system is the case of

BAGWANG VS DE VILLA.

- the determination of a probable cause

wherein conducting searches & seizures

under the Constitution it is lodge with the

judge under sec 2 art 2 - the right of everyperson against unreasonable arrest, search

& seizure,di ba, ok, kaya nga sabi ko nga

doon sa ano, well you can have a barong

barong house but the king of England

cannot enter, but all the forces of the king

of England cannot dare to enter the place.

Talaga napa ka sacred ng ating privacy to

be left alone.

- accdg to justice cruz it is a very delicate

policy to encourage the setting up a checkbecause you will be killed at will of the men

manning a checkpoint, as in the case of

Atimonan, but the majority decision,

checkpoint is a necessary measure to

protect the state and for the benefit of the

public as a measure of territorial defense.

- generally. checkpoint is considered as can

be deemed as in the case of Bagwang vs De

villa that, it is a security measure to enable

the police authorities to pursue its mission

of establishing an effective territorial

defense for the benefit of the public

PROVIDED that the vehicle is neither

searched nor its occupants subjected to

body search and the inspection of the

vehicle is merely visual, so that if you

happen to pass a checkpoint,they cannot

instruct you to open the trunk - its merely

visual.

- now question, since its visual what about

vehicles which are heavily tainted, can the

police men manning the checkpoint order

the driver to roll down his window? ANS:YES, if it is heavily tainted it cannot

effect a visual view on the vehicle & there

is a jurisprudence to support on that.

- Now, another thing to consider as ive said

checkpoint per se is not illegal in other

words, not all but it will be the setting up of

checkpoints should not base under the

circumstances, you cannot just set up a

checkpoint as a matter of policy.

- checkpoints are being set up by exigency ofthe circumstances because it is based on

that circumstances.

- when the election period commence on jan

13 there is a necessity to set up checkpoint

because it is an order from the COMELEC

deputizing the police authorities to set up

checkpoint in order to enforce the gun ban

law.

- now, as an EXCEPTION, the general rule is

you will set up a checkpoint as required bythe exigency of circumstances, provided its

merely routinary check & visual searched

as an exception to the general rule, you can

have an extensive search on the vehicle

provided the policemen have probable

cause to conduct an extensive search.

- probable cause- such facts & circumstances

which could lead a reasonable & prudent

mind to believe that an offense had been

committed & that the object sought in

connection with the offense are in the place

sought to be searched. ibig sabihin pag

duaman yung vehicle visual search in the

course of visual searched of the vehicle

nangangamoy, ang amoy ay hindi yung

usual pag ang tao ay hindi naka paligo

kundi amoy ng marijuana, with that given

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fact, can you do extensive search? ANS:

YES.because there is probable cause given

by the fact that there is a smell of marijuana

coupled if you see inside the vehicle a bag

halfway open & although wrapped in a

newspaper but there is something an odorwhich is distinct of that of marijuana. Is

there a circumstances telling to show that

there is probable cause to conduct an

extensive search? ANS: YES, and therefore

the vehicle can be totally search & the

policemen can inquire whats the contents

of that bag. If & when it turned up to be

marijuana then that could be subject to

seizure. WHY, because marijuana is a

dangerous drugs if the motorist could notpresent any authority, that is a prima facie

pre sumption that the posse ss ion of

marijuana is illegal. Can it be seized? ANS:

YES because that is an evidence of the

crime of illegal possession of marijuana

penalized under Art 9127. The GENERAL

RULE - is visual EXCEPTION - probable

cause to conduct a extensive search.

- People vs Diaz et al GR 141137 jan 20,

2004 .now in this case, the person involvedhere, & the y happen to pass by a

checkpoint & they disregarded the

checkpoint imbes na huminto tuloy tuloy,

that lead the policeman manning the

checkpoint to stop them & after they were

stop Diaz was having a backpack, in his

possession there emit an odor of marijuana

& because of that facts & circumstances

providing the policemen of evidence that a

crime was being committed in there

presence they can conduct an extensive

search. Now & remember class i am

emphasizing these yung pagconduct ng

search without warrant is an exception,

there ought to be an order from the court, a

warrant from the court for an extensive

search for the arrest of person, the general

rule there ought to be a warrant of arrest or

search warrant.

- now well another thing that you have to

consider in order of setting up of checkpoint

& the conduct of men manning the

checkpoint can be given the presumption ofthe regularity to the performance of their

official duty. you have to strictly observed

their SOPs (special operating procedures),

their manner. In the case of policemen-ito

ang tatandaan ninyo- that they should be in

proper uniform. pag nag gawa ng

checkpoint there not in proper uniform any

search could be question & even if there is a

contraband that would be seized in the

process & they are not in their properuniform, the uniform required here is the

GOA (General Office Attire) & not the

combat uniform or camouflage hindi yon,

although they are in uniform but not their

combat attire.

- another one, the checkpoint should be lead

by an official in case of At imonan

checkpoint, was it lead by an officer? ANS:

YES, by Col Marantan.

- another one to take note there ought to be asignage that there is a checkpoint, ex.

checkpoint on COMELEC for gun ban.

- In that signage the name of the team leader

should be conspicuously written.

- there should be a marked police vehicle.

what is a marked? alam ba ninyo yong

police vehicle- ito yong basic requirements

on the part of the police authorities.

- 10 REQUIREMENTS:

* checkpoints must be well lighted, properly

identified & manned by uniformed

personnel. upon approached, you have to

slow down, kasi kung nagbibilis ka, mabilis

ka & you disregard the checkpoint that is a

circumstance to have an initial suspicion

that there is something that you are hiding

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something. remember, upon approached,

slow down, pag ka gabi dim your

headlights. & turn on the cabin lights, sa

loob, wala ka naman tinatago, tapos never

step out of the vehicle.

* lock all doors of the vehicle during theinspection-since only visual inspection is

allowed.

* Never subject to physical & body search.

* Motorist are not being required to open the

load compar tment , t runk or back

compartment.

* be courteous, but firm to answer,assert your

rights, have a presence of mind when

answering.

*keep you drivers license & properregistration certificate.

* be ready to use your mobile phones at

anytime & dial an emergency numbers if in

case.

-Now for your information, what would be

the actuation of police authority if somebody

passing through a checkpoint commits traffic

violation: If you are flagged down by a

policeman, at the checkpoint for a trafficviolation, question will be - ito magandang

question ito sa finals- those motorist who

have been flagged down by policemen on

account of violation of traffic rules, are they

considered under arrest? or their act of

violating traffic rules constitute commission

of a crime in the presence of the police

enforcer? Halimbawa, nagmamaneho ka ng

motor at wala kang helmet is that a traffic rule

violation? Is there a traffic ordinance being

violated? IF you are caught violating & the

police officer will bring you the the police

station, is that proper? In traffic violation,

does not authorize policemen to placed you

under arrest,remember class, what is the

meaning of ARREST.

- ARREST is the taking of a person in the

custody of the law for purposes that he may

be bound to answer for the commission of an

offense.

-and another thing, if you are under arrest can

you be searched by the police who arrestedyou? ANS: YES, as in search incidental to

lawful arrest. Now, if you are not under arrest,

if its merely a violation of traffic rules,you are

not consider under arrest. the police should

only to stop you & their duty is that they

should only inquire something & will just ask

for the drivers license, then you will be

released & stopping you on account of traffic

violation does not constitute arrest.

- If it does not constitute arrest,then thepoliceman searched you? ANS: NO, but it

would be different if there could be a lawful

arrest, you can be search for dangerous

weapon & evidence in the commission of

the crime.

- anong justification, the RA 4136 (Land

Transportation & Traffic Rule).

- if they ask your drivers license, ibigay &

then you have to pay a corresponding fine

within 72 hours.- in lieu of confiscation of your license you

will be issued by a traffic citation ticket.

This traffic citation ticket will authorized

you to still drive within 72 hours.

- Now, if you will not pay the corresponding

fine that could be, sabi the failure of the

driver to settle his case within 15 days

from the date of apprehension will be come

to a suspension & revocation of license.

- what is the basis of checkpoint - its because

the deputization of policeman by the

COMELEC & the purpose is to ensure free,

orderly & peaceful election.

- Now, after election the City act of

checkpoint can be done, for example,

robberies are rampant, the city of Naga, in

order to portray the proliferation of the

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riding in tandem can the police force of the

city of naga can set up checkpoint? ANS:

YES, but not at all often without basis that

they can simply set up checkpoint by the

city of naga by their own caprice.

- well the prohibited acts of course, gun baneven though you are a licensee, if you dont

have a permit to carry from the COMELEC

pwede ka maaresto. kung wala kang

lisensya, naaresto ka, you can be charged ng

dalawang krimen violation of RA 66 as

amended and gun ban.

- can you be convicted of 2 offenses? ANS:

NO.

- but can you be charged of 2 offenses?

ANS:YES, the only thing there, there oughtto be a conviction first so that you cannot be

deemed prosecuted for illegal possession of

unlicensed firearm. so the most that you can

be convicted is the violation of gun ban- the

prescribed penalty is not less than 1 year &

not more than 6 years but the case of illegal

possession if it a high powered, medyo

mataas man ang penalty.

- now, are invitations by policemen constitute

an arrest? Is it illegal? ANS: NO,it is notunconstitutional.

- what is significant to know is that invitation

of a person subjecting to a custodial

investigation. If you were invited by a

policeman can it be considered you are

under custodial investigation? you are

invited in the police station for a police line

up, thus it constitute custodial investigation?

ANS: NO, because police line up is

authorized, since it does constitute custodial

investigation, why, because it is a general

inquiry.

- when is the person under custodial

investigation- when the investigation zeroes

in of his participation in the commission of

the crime. pag nag start ng question na

nililink ang isang tao in the commission of a

crime, that already constitute custodial

investigation & when a person is under

custodial investigation he must be afforded

of his rights, and what are these rights - his

Miranda rights and the counsel who is

needed to assist him in the investigationshould be not only competent but an

independent counsel of his own choice.

- it is different in the trial proper, its not a

strict requirement for the counsel which is

required under custodial investigation. the

strict requirement of the qualification of a

lawyer in court before the process of

custodial investigation is because its an

intimidating circumstances outside the court

the probability that the accused or thesuspected person might give uncounseled

statement.

- so invitations are not arrest.

- if under custodial investigation you should

be afforded of your rights under RA 7413 -

the rights of a person under custodial

investigation.

- what are the modes of effecting an arrest.

- 1. physical arrest

- 2. voluntary submission of the person to thecustody of the person making an arrest

-HOW DO YOU ARREST A PERSON- there

is a great significance, as ive said, a while

ago abut the proper arrest of a person because

if a person is not under arrest there is a big

difference as in the case of LarranagavsCA

287scra 581, if a person is not under arrest

under the exceptional circumstances

warranting a warrantless arrest you cannot

subject him to inquest proceedings because

you can only conduct an inquest proceedings

when a person was validly arrested under a

warrantless situation.

-an arrest signifies restraint on the person,

depriving one his own will & liberty, finding

him to become obedient to the will of the

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law. if you are not deprived of your liberty in

order for you to answer for the commission of

the offense you cannot be said under arrest.

-if you are not lawfully arrested you cannot be

searched incidental to that arrest.

-How does policeman arrest the person -under the Rules, there must be a warrant &

inform the person to be arrested of your

authority why you are arresting him, except of

course, kung tumakbo, the police officer

enforcing the warrant would arrest him first

then inform him why you arresting him.

- Take note that notoriety alone of the person

or the criminal to be arrested will not justify

the police officer to use unnecessary force.

- anong necessary force - it depend upon thecircumstances. there is no hard & fast rules

what is the necessary force to be enforced in

order to arrest the person.

- The police officer is a judge on how to

properly & reasonably arrest a person under

the circumstances, but unlike a civilian, a

private individual, the police officer should

stand ground, hindi dapat sya tatakbo if

there is some resistance hindi sya tatakbo

agad, the police should stand ground toarrest a person. kung hindi armed &

dangerous the person & does not resist do

not use your firearm, must use reasonable

force.

- jurisprudence says that police officer in the

performance of his duties must stand

ground.

2/7/2013

-What is that period mention in the Rules to

effect the arrest in 10 days?

- So if you will submit a report stating that the

accused cannot be located because he is not

there in his address & you have already

served it, now, is it require to submit the or

return the warrant of arrest? ANS: NO.

- What is required?

- What is an alias warrant?

- in the first place, the court will not issue a

warrant if the address is not known because

the Constitutional provision is very clear,

when you issue a warrant of arrest theparticular name of the street of a person,

place & the place to be seized, thats why,

otherwise it will be a general warrant.

- now, an alias warrant it refers to the

situation where the court has already issue a

warrant of arrest sometimes the police

officer would submit the report or return the

warrant issued by the court so that if they

surrender the copy of the warrant of arrest

then in which case the judge will see it onthe record &there is a statement that the

accused cannot be arrested & he cannot be

located in his given address so the court

mandated to archive the case & issue an

alias warrant.

- an alias warrant is what we call the warrant

of arrest which was issued for the 2nd time,

it is not the original warrant & that is why it

is called an alias warrant.

- so the subsequent warrant of arrest issue inlieu of original warrant of arrest that is what

we called an alias warrant.

- the warrant of arrest is effective until it is

served.

- the warrant should not be returned by the

arresting officer. all he has to do is submit a

report to the court within 10 days if you

cannot served it just report. (Reporting your

honor that until today i did not served the

warrant) the arresting officer can retain the

copy of the original warrant of arrest until

such time it is served.

- thats why when you will be ask the

distinction between the search warrant &

warrant of arrest, there is no such thing as

alias search warrant & the search warrant is

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likewise should be enforced within 10 days,

otherwise it ceases its validity.

- supposing it will be served after the

expiration what happen to the search - the

search would be illegal.

- supposing there will be a sizable quantity ofshabu & the search warrant was served after

its validity, it lapsed for a period of 1 day &

a report said that the stock is at the place

ought to be search & they proceeded the

search, what will happen to the search -it is

illegal, can you use the evidence - no, that is

what we called the fruit of the poisonous

tree.

- if you are a civilian effecting a warrantless

arrest what are procedure to be followed -you witness somebody killed another

person, can you arrest that person? Can you

recite the Miranda rights?

- that person should announce his intention

why he is arresting that person

- it is not the duty of the private person to say

the Miranda rights because they are not

trained when effecting an arrest. Its different

with the police officer, but if the private

citizen knows about the miranda warning,then that private citizen can say it. the basic

is that, when a private person knows that

somebody commits a crime he can effect an

arrest, but the duty belong to the police

officer. in fact it is institutionalized under

RA 7430.

- upon arrest the following must be

confiscated:

1. objects subject of the offense or intended

to use in the crime. objects which are the

fruits of the c r i m e - c e l l p h o n e p a g

cellphone ang ninakaw)

2. dangerous weapons

3. objects whose possession of which s illegal

per se

*These are what we called searched incidental

to a lawful arrest.

- what happen if there would be searched first

before arrest, is it correct? ANS:NO, first

there must be a valid warrantless arrest

- when can a person effect a valid warrantless

arrest: In his presence the person sought bearrested is actually committing a crime, has

been committed a crime & attempting to

commit a crime.

- in attempting to commit a crime is not in the

Rules before what has been wittten before

is about to commit a crime it was deleted

because it does have little significance, it

was attempting to commit because if there

was attempt there is already a penallty, its

one stage in the execution of a crime, sowhen a person commits to execute the

commission of a crime but did not pursue it

other than his continuous desistance. EX.

Pag kuha nya ng baril hindi pala nakalagay

ang magazine, instead ang nakalagay doon

Philippine Star, pagbaril nya, wala, but

theres already commencement of the crime.

Can you arrest him in your presence? YES.

there is already an attempt or an overt act to

commit the crime. it is the overt act that ispunishable.

- this is what we called in your presence when

a crime is committed & you effect an arrest

is called in FLAGRANTE DELICTO.

- other instance where you can effect a valid

warrantless arrest. Is when a crime has just

been committed & the person

- the word has just been committed is very

important because in order to effect a

warrantless arrest under paragraph B, the

crime has just been committed which is

related to some extent of immediacy and the

person has probable cause to believe based

on personal knowledge that the person to be

arrested has committed it.

- In flagrante delicto arrest the requisites

would be that we use your sense, that if can

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smell something that of marijuana, & youre

an expert on that, & at the distance, that

constitute if somebody is using marijuana,

& you smell at the distance....

- HOT PURSUIT - the crime has just been

committed & youre following up.- how about if 3 days has already elapsed or 1

week has elapsed can you still effect an

arrest? What is the standard time if which

you can effect an arrest in hot pursuit arrest?

first, in FLAGRANTE DELICTO ARREST

there ought to be a circumstances in which

either instances , as in sense of smell, when

you sense,for example a peculiar smell of

marijuana, even though at the distance, you

can effect the arrest because it is within thecontext that in fact the crime has been

committed in your presence. the case of

(People vs. Evaristo G.R. No. 93828, Dec.

11, 1992).

- FACTS: Peace officers while on patrol,

heard burst of gunfire & proceeded to

investigate in the house of appellant where

they were given permission to enter

accidentally discovering the firearm in the

latters possession. Accused-appellant foundguilty of illegal possession of firearms

contends that the seizure of the evidence is

inadmissible because it was not authorized

by a valid warrant.

ISSUE:

WON the evidence obtained without warrant

in an accidental discovery of the evidence is

admissible.

HELD: YES, the firearms seized was valid &

lawful for being incidental to a lawful arrest.

An offense was committed in the presence or

within the view of an officer, within the

meaning of the Rule authorizing an arrest

without a warrant.

- The requisites for a flagrante delicto arrest

should be the person sought to be arrested

must execute an overt act indicating that the

crime has just been committed, is actually

committing or is attempting to commit the

crime. such overt act is that, in the presence

or in the view of the arresting officer & if

we speak of probable cause - is such facts &circumstances indicating that the person to

be arrested is committing a crime, is actually

committing or the crime has just been

committed in order to effect a flagrante

arrest.

- in the case of HOT PURSUIT the crime has

just been committed it is not the matter of

time, there must be immediacy, but still it

depends on the circumstances.

- what is the condition - the condition is thatthere is no intervening period in the pursue

in effecting an arrest in hot pursuit from the

time of the commission of the crime, tuloy

tuloy (P vs. omar ) the arrest was happened

6 days after the commission of the crime, he

was arrested in Davao & the kidnapping

happened in Quezon City & yet the arrest is

still valid, REASON - from the moment the

police officer came to their personal

knowledge about the facts & circumstancesindicating that the person committed the

crime, tuloy tuloy an kanilang paghabol, &

there are facts & circumstances that give

them basis to arrest the person.

2/19/2013

- Somebody ask me if a person arrested,

under the rules can be search incidental to a

lawful arrest. Now, the question is, to what

extent will be that search should be

conducted, should be only limited on his

person or within the immediate vicinity, ito

yung mga tinatanong ng mga police officer.

- now, if you try to recall the case ofNolasco

vs. Pano she was arrested around 100m,

there was a warrant of arrest & the arrest

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took place around 50 to 100m from the

house & when she was arrested her house

was searched with seditious articles which

linked her with the NPA & there were papers

& effects which are evidence to proved that

she is a member of NPA or communistgroup & it planned to overthrow the

government, there was a question whether

those evidence seized from her house could

be use against her & could be justify under

search incidental to a lawful arrest.

- Karamihan tanong ng mga police, Sir to

what extent we can search a person

incidental to a lawful arrest. The rule is it

should be limited on his person.

- And what about his immediate vicinity, ithink so, for as long as the place where he

was arrested & it appears to be within his

vicinity & control.

- Now if a person arrested in her residence,

inside her residence can the police officer

search the entire house? for example, the

person was arrested in the living room, can

the police officer go to her bedroom to

search & seized evidence in connection with

the crime. The correct answer, it would belimited to his person & his immediate

vicinity. kasi, if it is only limited to his

person how about kung may tinago sya.

dont you think you can seized that

evidence? of course & the search incidental

to a lawful arrest - there should be a lawful

arrest first before search it cannot be

otherwise.

- Lawful arrest before search.

People vsHon Bonifacio SanzMaceda G.R.

No. 89591-96 Jan. 24, 2000

-Hon Sanz Maceda is the presiding judge of

the RTC of Antique & he is now in Las Pinas

- the accused is a lawyer & instead that he

should be incarcerated he was placed under

the custody of the trial court, question, is he

under detention, was he validly arrested

arrested & under detention?

- as we have said, when there is an effective

restraint of the liberty of the person he is

considered under arrest otherwise if he is

free & can do whatever rights & he is notunder restraint his liberty then we cannot

say that he is under arrest.

- Now, another thing is that he is placed under

custody for him in order to answer a

definite case otherwise it could be illegal

detention or arbitrary detention as the case

maybe.

- illegal detention there are private person

responsible for depriving his liberty

-he was involved in the killing of Evelio

Javier

-Now, accdg to the case the lawyers who filed

those cases of the validity of the 1973

Constitution.

- in connection with the circumstances with

the warranting a valid of warrantless arrest

such as flagrante delicto arrest & hot

pursuit arrest, & we have discussed search

incidental to a lawful arrest I think whateverquestion that might crop up you can

effectively answer.

- Another doctrine in connection with this is

search of evidence in plain view, plain view

it is seeing in distance, maliwanag, nakikita

mo, a particular evidence but it does end

there but there are requisites:

1) the law enforcer officer is in a position

where he has a clear view of a particular area

or prior justification of intrusion - when is

there a prompt prior justification of an

intrusion, for example, if a police officer is

armed with a search warrant & he enters the

house & implement the search warrant there

was a prior valid intrusion; what is that valid

prior intrusion - by virtue of a search warrant.

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- Now, the contents of the search warrant is to

search & seized drugs, dangerous drugs

such as shabu, & in the course o

implementation, nakakita sya ng baril, can

he seized it, ANS: YES, it can be justified

under the doctrine.2) said officer inadvertently comes across a

piece of incriminating evidence - hindi

naman yon ang purpose but as he continue

to search the house nakita nya sa cabinet

may baril ay ngayon pag wala kang

lisensya o hanapin mo saan ang lisensya

mo, at wala kang lisensya, so incriminating

evidence pero so you can seize.

3) in this immediately acquired by said

officer that the item seized maybe theevidence of the crime or contraband or

otherwise subject to seizure, like for

example, baril may gun ban ngayon kaya

its your duty to possess such license

without that its subject to seizure.

now, another rule that you have to take note -

search of moving vehicle doctrine - in this

case you dont have to secure a search

warrant, why, because of necessity. Movingvehicles of course, can quickly moved out

from one place to another, that is why this is

an exception to the general rule - that prior

to the search the law enforcement officer

should be armed by a search warrant. this is

born out of practical consideration. you can

just imagine, may nakita kayong contraband

& let us say, its very fast but take note that

although a search of moving vehicle as an

exception to the general rule, you can search

it, however, if the law enforcement officer has

still time to procure search warrant, sasabihin,

3 days from now may dadaan na particular

vehicle with plate no. ganito ganito fully

loaded with sacks of shabu although it is a

moving vehicle, because of your information

& you still have the time to procure a search

warrant then you need to go to court because

in the course of the evaluation of the

circumstances to justifying the seizure under

that law time will be considered by the court.

-Remember class, in terms of interpretation ofexception to the general it is always construed

against the government, against the law

enforcement authorities. So take note of the

time.

- the stop & frisk rule - how do we apply this

- well, when there are invitations that a

private person shows unusual conduct

suspicious conduct especially kung bulky

dito sa tagiliran, that would be an indicationna may baril dyan. can you apply this stop &

frisk rule doctrine? ANS: YES, do you need

probable cause - NO only unusual &

suspicious conduct but this doctrine is

search merely of outer clothing, hindi pwede

ipasok yong kamay mo sa kanyang bulsa,

lalo na sa underwear, baka ibang evidence

ang makita mo, assuming there is an

evidence.

-Another thing that you have to consider is

the consented warrantless search - usually ito

ang gingamit Pumayag eh kaya sinearch

namin for example, a moving vehicle with a

prior info that it has a seizable quantity of

marijuana placed at its back trunk now, you

cannot open it, you cannot order to open it &

search, sabi natin sa checkpoint dapat visual

lang. alam nyo sa magagaling na police

officers marunong sila makakuha ng consent,

yung kanilang power to persuade na anyway

kung wala ka talagang tinatago buksan mo

na yan yung likuran ng sasakyan mo kasi may

information kung voluntary that could be

justified under the consented warrantless

search.

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What are the Parameters for the court to

determine that the actuation of the consented

warrantless search is valid:

- whether consent to the search is in fact

voluntary is a question of fact to bedetermine from to the totality of all the

circumstances relevant to this determination

are the following characteristics of the

person giving consent by which consent is

given:

1. the age of the defendant or the suspect - if

it is a minor could say there is a valid

consent?ANS: hindi

2. whether the defendant was in a public orsecluded locat ion - the locat ion

consideration - kung in a secluded location

medyo hindi basta basta tanggapin ng

husgado, most likely the person is under

such an intimidating situation to give

consent. The interpretation of the court is

that there is no valid consent kasi in a

secluded location, kasi if in a public

location that would be different the court

will consider that there was a valid consentof the search.

3. whether the defendant objected to the

search or passively look on. for example,

nag object & definitely there was no

consent papaano kung passive lang sya-

wala syang reaction, basta tumingin lang

sya sige mag search kayo dyan - so there

could be no valid consented warrantless

search.

4. the education & intelligence of the

defendant - well kung no read no write na

defendant mukhang may question tayo in

respect to the consent given, the education

& intelligence of the defendant.

5. the presence of coercive police procedures

-

6. the defendants belief that no incriminating

evidence could be found - pag sinabi nyo

OK search mo ako wala naman dyan - so

there is a valid consent, the defendants

belief that no incriminating evidence could

be found.7. the nature of police questioning

8. the environment in which the questioning

took place.

9. the possibility that possibly vulnerable to

subjective state of the person consenting

- the case of Rodel luz vs CA, G.R. No.

197788, Feb 29, 2012 - I decided this case

here & I justified the search incidental to a

lawful arrest but the SC said, applying

doctrines in US there was no consentedvalid warrantless search. This case is about,

ganito nagmamaneho sya ng motor wala

syang helmet at napadaan sa isang station

dito, flag down eh malapit lang sa station

kinuha sya.Ngayon nong nasa loob na sya

ng p r es en t o t he accus ed behave

suspiciously, panay ang, so pinalabas kung

anong laman ng kanyang jacket at may isan

container ng binuksan ang laman shabu, at

hinuli sya at charge with illegal possession.ito ang mahirap tiningnan ko kung papaano

ma convict ito kasi madaling araw eh dahil

first before you search there must be a

lawful arrest. the classification ay the search

must incidental to a lawful arrest sabi ko he

was violating an ordinance not wearing the

helmet since he violated an ordinance he can

be searched incidental to a lawful arrest

punta sa CA sustained pagdating sa SC

reversed thats the beauty of stretching your

mind. tiningnan yong batas pag ikaw ay

hinuhuli ng traffic rules you are not said to

be placed under arrest the police officer

should take your license, confiscate your

license & issue citation ticket. when you are

temporarily hold for violation of traffic rules

you are not said to be under arrest &

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therefore you cannot be search incidental to

a lawful arrest. Ito yong isang argument ni

CJ.

- #2 - about consented warrantless search -

under that circumstances could there be a

consented warrantless search? sabi youcannot be justify, first nasa station sya, he is

in an intimidating situation, anong oras,

madaling araw, at wala syang kasama,

mahirap mapaniwalaan that it could be

justify under consented warrantless search.

pero both of us, the CA, were reversed by

the SC. we learned from how we interpret

the law & the facts but at least we achieved

our purpose the accused were not able to do

hi drug pushing activities.

-as additional readings - Posadas vs Hon.

Ombudsman G.R.No. 131492 Sep 29 2000 -

ang situation dito may mga eyewitnesses

pwede ba yong eyewitnesses of the

commission of the crime dadalhin ng police?

sino ba ang responsibility ng killing, alam mo

sir nakita namin. the crime happened usually

after 1 day, 2 days pero may eyewitnesses.

pwede ba yong eyewitnesses dadalhin paraumaresto ng tao said to be responsible in the

commission of the crime. sino ba ang

responsible, sila po, can the police officer

arrest that person? can it be justified under hot

pursuit arrest meron kang eyewitness. this

case of Posadas vs. Hon.Ombudsman, Roger

Posadas is the former University president of

UP, he is involve in the killing of Dennis

Ventura, the hazing case, they were charge for

obstruction of justice, they prevented the NBI

to arrest those students who were believed in

the hazing & killing of Ventura, and the

Ombudsman filed a case against them for

obstruction of justice & they filed a certiorari

case before the SC. So SC said hindi talaga

ma justify under hot pursuit arrest. First wala

silang personal knowledge, tinuturo lang, so

what should be done by the police officer if in

cases there are eyewitness ang gawin mo

dyan mag file ka ng kaso or mag apply ka ng

warrant of arrest pending filing of the

criminal case.

- another one this would help you to betterunderstand about Sec 5 of Rule 113

- the case ofSammyMalacatvs. CA G.R.No.

123595 Dec, People vs Tudtud G.R.No.

144037 Sept 26, 2003

- in Sammy Malacat case try to read the

separate opinion of CJustice Panganiban, he

summarize the related cases about the valid

warrantless arrest.

- People vs. Anthony Cuizon et al gr no.

109287 april 18,1996- Yung case ni People vs Tudtud this is about

the reliable information & in the course sa

checkpoint makikita dyan, halimbawa

mayroon isang supot sa loob ng sasakyan

pero hindi pa open naka close ang supot but

you have a prior information na may supot

na daladala na may shabu, pwede mo ba yan

ma search & seize? Kasi iba iba ang

decision ng SC eh, pero dito sa case na ito it

distinguishes kung kailan maka pag search& seize on the basis of reliable information

but the safest rule is that may reliable

information plus may overt act before you

can arrest & search. There must be a

probable cause which contemplates that

there must be an overt act to show that the

person sought to be arrested is committing a

crime in your presence or just committed an

offense.

- Now lastly that you have to take note in our

discussion of arrest - the right of the arrested

person to visitation by lawyer or relatives -

the right of the person arrested to confer

privately with a lawyer is absolute & it can

be demanded at anytime unlike with respect

to relatives regulated yan eh hindi at

anytime unlike in the case of lawyers

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talagang, the accused right to confer with his

lawyer privately is absolute.

- The failure to afford that would subject the

concerned police officer to administrative &

criminal prosecution.

- Now, in relation to that visitation, RA 7438 -this is an act defines certain rights of the

person arrested, detained or under custodial

investigation as well as the duties of the

arresting, detaining & investigating officer

& providing penalties for violations thereof.

- Take note class that there is a penalty of

imprisonment - a police officer who fails to

inform the Miranda Rights of the arrested or

detained person will subject to criminal

prosecution.- now, when is a person under custodial

investigation? Is police line up constitute

custodial investigation? ANS: NO, because

police line up involves general inquiry, but,

when is a person under custodial

investigation? when the investigation zeroes

in to his participation in the commission of

an offense, sa kanya naka focus that means

the person is under custodial investigation &

therefor his rights under RA 7438 will beobserved & should be observed.

- In respect to cases under inquest if the

arrested, lawfully arrested person who is

presented for inquest & in the course of the

inquest proceedings he manifested that he

wants to avail of his right to preliminary

investigation he is required to execute a

waiver under Art. 125 & in the execution of

the waiver he should be assisted by counsel

otherwise without the assistance of counsel

that waiver is null & void.

- Is invitation constitute an arrest?ANS: NO,

does it constitute custodial investigation?

YES, under RA 7438. Now, waiver of the

right to counsel should be done in writing &

with the assistance of counsel.

- And by the way, if a person is under

custodial investigation, his right is not only

a competent counsel but it should be

independent also. If the counsel is

competent only & is not independent there

is something irregularity in the observanceof the rights of the person arrested, detained

or under custodial investigation.

- Now, whats the purpose of custodial

investigation? Is it illegal? NO, hindi naman

mali or illegal kapag pasalitain ka kung ano

ang participation mo to extract the truth, it is

not illegal, what is illegal is you are

subjected to a coercive & intimidating

circumstances in which your statements are

taken without the presence of counsel.- The purpose of custodial investigation is of

course is to extract extrajudicial confession.

- But you know its ok, however in doing so

the rights of the person should be afforded

under that circumstances because while

there maybe a statements given voluntary if

it was assisted by a competent &

independent counsel of choice the

statements given while it is true, it cannot be

made in evidence against that person givingthat testimony.

- supposing in a crime of murder the accused

make an extra judicial confession can he be

convicted? If there are other evidence

showing his culpability in the crime of

charge of murder? aside from extra judicial

confession which was invalidly secure can

the accused be convicted? ANS: YES, as

long as there are other evidence, sabihin

natin, inadmissible yung extra judicial

confession if there are other evidence

proving that he is involved in the

commission of crime charge, he can be

convicted.

- But with respect to illegally obtained

extrajudicial confession it cannot used in

evidence in any proceedings whether

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administrative, civil or criminal because that

is also within the ambit what we call the

fruits of of the poisonous tree.

2/21/2013 - BAIL - Rule 114

- Can you tell us what is BAIL? Bail is given

for as a security or to guarantee the

appearance of a particular accused who is

charged of a criminal offense.

- What is the condition that the bail should be

granted to the accused?

- What the prerequisites in which bail is

granted to the accused? Can the court, for

example, a person is accused of homicide,

homicide is a bailable offense & that couldbe avail as a matter of right before

conviction.

- Now, in order that a person can be protected

under the threat of being arrested, that

person ---- to the court to apply for bail, will

the court, usually the recommended bail for

homicide is P40,000.00, you went to the

court to apply for bail for ---- will the court

process his application.

- we discussed extensively the distinctionbetween the jurisdiction over the person

accused & custody of the law. as we have

said, when we speak of jurisdiction the

court can acquire jurisdiction over the

person of the accused even if not appearing

before the court, mere filing a pleading the

court can already acquire jurisdiction over

that person except of course those cases

which we called those special appearance

cases.

- but in the case of application for bail it is

required that the accused should be under

the custody of the law not jurisdiction

because jurisdiction can be acquired through

filing a pleading.

- so in cases of application for for bail its a

must that the person or the accused should

be in the custody of the law.

- when is the accused under the custody of the

law - a person is in the custody of the law

when he has been either arrested or

otherwise deprived of his freedom or when

he has voluntarily submitted himself to thejurisdiction of the court by surrendering to

the proper authorities

- state the Constitutional provision of availing

bail. All persons except those charged with

offenses punishable with reclusion perpetua

when evidence of guilt is strong, shall before

conviction, be bailable by sufficient sureties,

or be released on recognizance as may be

provided by law. The right to bail shall not

be impaired even when the privilege of thewrit of habeas corpus is suspended.

Excessive bail shall not be required. (Sec 13,

Art III, 1987 Constitution)

- so all persons except those charge with

offenses punishable by reclusion perpetua

- which is cumbersome life imprisonment or

reclusion perpetua - by, the way the basic

distinction between life imprisonment &

reclusion perpetua - 1.) in life imprisonment

are the penalties imposed on those offensespunished by special law whereas reclusion

perpetua refers to felonies under the RPC;

(2) in reclusion perpetua there are

accessories penalties & in life imprisonment

there is not. But the question which more

burdensome - reclusion perpetua or life

imprisonment? - Life imprisonment is more

burdensome because it no definite period

while reclusion perpetua is an an indivisible

penalty yet it has a legal duration of 20 yrs

& 1 day to 40 yrs. In life imprisonment there

is no legal duration.

- what is the rationale granting the bail to the

accused charged with an offense - the

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fundamental basis why the person facing

criminal charges is because of the

presumption of innocence & what you said

in respect to purposes in a meanwhile that

the accused held for trial when there is a

bailable offense it is inadherence to honorthe presumption of innocence of every

person charged.

- So the purposes of bail:

1.) to relieve an accused from the rigors of

imprisonment until his conviction & yet to

secure his appearance at the trial

2) to honor the presumption of innocence

until his guilt is proven beyond reasonable

doubt;

3) to enable him to prepare for his defensewithout being subject to punishment prior

to conviction;

- di ba papaano ka magkaroon ng wide livery

to look for your witnesses & to prepare for

your defenses if you are incarcerated. So if

it is a bailable offenses you should be

granted.

- Now, a person is charge with the crime of

homicide & after preliminary investigationthe prosecutor found probable cause &

accordingly he filed an information of

homicide against the accused before the trial

court in the information there is a line in the

bottom recommended bail P40,000.00. Now

here comes the accused he surrendered to

the court & at the same time he applied for

bail. Should the court set up the application

for hearing?

- Have you seen an information? - it is an

affidavit in writing prepared by the

prosecutor charging the persons of a

particular offense, there is a recommended

bail P40,000.00 which is the bail for

homicide. Now, the accused come to avail

under that circumstances , is the court set

that up for hearing? The person is under the

custody of the law by surrendering &

therefore being under the custody of the law

he can apply for bail. It should not be set for

hearing because there is a recommended bail

in the information.

- What is contemplated that there will be ahearing is when there is no recommended

bail because you have to apply the factors

obtaining to determine the appropriate

amount that you will placed for bail.

-When is bail excessive -

Yap vs CA, G.R.No. 141529 june 6, 2001 -

here the accused was charge of estafa & the

court imposed a bail of P5.5M under the

circumstances it is very obvious an excessivebail. You can just imagine stabbing somebody

& killed & the recommended bail is

P40,000.00 here, estafa is a property crime

the prescribed bail is P5.5M. SC said quoting

Justice Jackson granting that P5.5M as a

bail is a promise to the ear to be broken to the

hope, a teasing illusion like a munificent

bequest in a paupers will.

-If you will be ask is there an instance that thecourt can inquire a person who is not accused

in crime be required to post bail? The court

can require a witness to post bail in order to

secure his appearance even if he is not

indicted.

- What is your basis - Under Rule 119 Sec 14.

- another legal basis wherein a person who is

not yet charge in court can apply for bail,

his application for bail can be granted -

aside from witness, person who is not yet to

be charge - can he apply for bail? Sec 7 Rule

112 provides that before the complaint or

information is filed, the person arrested will

ask for a preliminary investigation in

accordance with the rule but he must signed

a waiver of the provisions under Art 125 of

RPC as amended in the presence of his

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counsel. Notwithstanding his waiver, he

may apply for bail while the investigation be

terminated within 15 days.

- What is contemplated in this provision - the

proceeding contemplated in this provision is

in cases where a person is subjected toinquest proceeding, in other words that

person who was lawfully arrested under

warrantless arrest under oath, so that if he

avail his right to preliminary investigation

he execute a waiver Art 125 & there will be

an investigation - no charge is filed before

the court in fact the inquest proceeding is

given 15 days to study the case whether

there is probable cause, but in the

meanwhile since he is still detained can heapply for bail even though he maybe charge

in the process? ANS: YES, because of Sec 7.

The rationale behind here is that once a

person is under the custody of the law he

has the right to bail except of course if he is

charge of a crime punishable by reclusion

perpetua or capital offense.

- in extra dit ion proceedin gs he is

immediately arrested & he is deprived of hisliberty, he may even be incarcerated,

question, can he apply for bail? Remember

in extradition proceedings there is no

criminal charge - so what is really the rule.

Can a person under extradition proceeding

& who is detained can he apply for bail?

ANS: YES he can because a person the

moment he is deprived of his liberty he can

apply for bail, the analogy here, if the

person under extradition proceeding can

apply for bail which is discretionary of the

Commissioner of Immigration there is no

reason why a person under extradition

proceeding cannot apply for bail when his

liberty has been restrained.

- The answer is that the person facing the

extradition proceeding when he is detained

he can apply for bail. Now, on the part of the

court what is the criteria to grant bail to a

person under extradition proceeding -

according to Justice Herrera citing CJ Puno,

that the evidence required in the application

in the grant of bail for person underextradition proceeding the quantum of proof

is CLEAR & CONVINCING EVIDENCE,

that evidence which is lower that proof

beyond reasonable doubt but higher than

preponderance of evidence. Clear &

convincing evidence that the applicant or the

person applying for bail in an extradition

proceeding is not a flight risk & will comply

all the orders & processes of the extradition

proceedings.- Before the court prior to the granting of bail

will require a condition that the accused be

arraigned first. The question is - is that

practice to require an arraignment is valid?

Ganito kasi ang court kung minsan gusto

lang makasiguro, OK arraign muna kita

bago i grant yung bail mo, bakit ganon ang

posture ng ibang ibang courts - dahil kung

ikaw ay ginrant bail na arraign ka na kahit

wala ka pwede ipatuloy ang kaso ito angsinasabi natin Trial in Absentia. The

exception of the case, the accused jump bail

he is not yet arraigned & after availing bail,

libre sya he jump bail, what happens to the

case he was not yet arraigned - ano ang

mangyayari sa case - may wisdom ito - na

prior to the arraignment or prior to the draft

for application for bail dapat ma arraign

may wisdom din yan, syempre kahit na sya

sumipot the court proceedings will not be

held hostage & it can proceed in absentia.

But why is it the SC said that is not valid -

Judge Lavides case, sabi ng SC mali yan

you can just imagine it is a requirement

before a person should be granted for bail

ma forfeit ang kanyang right to file a motion

to quash di ba, because motion to quash

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should be filed before arraignment

otherwise that right is considered waived,

except of course on the ground of lack of

jurisdiction.

- this also happens in the case of Serrapio vs

Sandiganbayan, the Sandiganbayan refusedto grant the bail without first having

arraigned.

- Requiring arraignment before grant of bail is

not valid.

2/26/2013

There are 4 forms of bail - corporate surety,

property bond, cash deposit, & recognizance.

- Determine how much bond is it is usually

stated in the information if it is a bailable

offense. Usually the information state how

much at the bottom of said information, for

example, homicide, there is a portion there,

bail recommended P40,000.00. now, when

the information contains already a

recommended bail there is no need for

hearing because it is already the prosecutor

who placed the recommended bail.- All the accused should do is, surrender to

the court so he would placed under the

custody of the law & then pay the

corresponding amount of the recommended

bail with undertaking with mug shots front,

left, right profile - this is required. The

affidavit of undertaking, that he would

appear when required by court, & that if in

case he fails to appear the case will proceed

in absentia & sometimes it is also required

where is the residence of the accused so that

in cases he is serve with the processes of the

court he can be located.

- With respect to corporate surety the bonding

company must be accredited first by the SC.

You cannot just simply go to a particular

bonding company & apply for personal bail

of the amount stated in the information. That

valid company should be accredited by the

SC, anyway it is just a matter of

administrative requirements. And the court

is very strict on that.

- What is the effect if the accused will presenta fake corporate surety? He can be arrested,

in case the court is mislead & granted with

an application on the basis of a fake

corporate surety.

- What is the difference between the filing of

the cash bond & surety bond - if you file a

cash bond that cash bond will be returned to

you no deduction nor interest unlike if you

will apply for a corporate surety bond there

is a corresponding fee or percentage & it isusually effective ----until for between you &

the loaner bond & you need to renew that. In

so far as the court is concerned, that

corporate surety bond is effective until

cancelled by the court.

- wala kang cash at wala ka naman pambayad

ng fee for the corporate surety you can use

the property bond. & the property bond, of

course, not necessarily under your name but

somebody could act as your bondsman asloaner for that particular property.

- But all you have to do once its approved you

need to registered it in the Registry of Deeds

otherwise within 10 days it will be

cancelled.

- Now if it is unregistered what will you do -

its the same process you have to register it

with the ROD plus caused the annotation &

the tax declaration of the said property in the

province or city where the property lies & it

should be done within 10 days otherwise the

court will cancel the property bond.

- Recognizance - is an obligation of record,

enter into before some court or magistrate

duly authorized to take it, with the condition

to do some particular act, the most usual

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condition in criminal cases being the

appearance of the accused for trial.

- surety of the state for the prosecution of the

principal are required.

- laymans term actually, somebody whether

there is guarantee for the court that heundertakes to produce & insure the presence

of the accused when required during the

trial. But not all cases that he can use this

form of bail - the recognizance - not all

cases.

- the husband of the mariners college,

managing officer of mariners college, Judge

Ampuan was a former Judge of Quezon City

& there was a case na constitute with Mayor

Lim, he was indicted for a crime in whichthe penalty exceeds 6 months & Mayor Lim

was trying to seek for the release of the

accused under recognizance. The crime -

the prescribe penalty of that crime is more

than 6 months, & Judge Ampuan declined

politely the request of Mayor Lim. Was

Judge Ampuan correct? He was correct in

declining the request because not all cases

can be subjected to recognizance by a

person. Usually its the politician whoundertake this recognizance. The politician

will go to the court Your honor i am willing

to constitute myself as a dealer & guaranty

the presence of the accused when required.

But under the Rules class, recognizance can

be avail for or maybe allowed in the

following instances:

(1) when the charge against the accused is for

violation of a municipal or city ordinance,

light felony & all criminal offense the

prescribe penalty of which is not higher

than 6 months imprisonment and /or fine

of P2,000.00 or both, provided that the

accused should es tabl ish to the

satisfaction of the court or any other

appropriate authority hearing his case that

he is unable to post the required cash or

bail bond. (RA 6036).

(2) When the accused has been in the custody

for the period of equal to or more than the

possible maximum imprisonment of the

crime charge to which he or she may be

sentenced. In the case of destierro if he isincarcerated for 30 days he can be

released after 30 days on recognizance.

Halimbawa, the crime is punishable by

arresto mayor, the penalty of arresto

mayor has a range of 30 days & 1 day to 6

months. Now, the accused has already

been on preventive detention for 6 months

can he released on recognizance?

ANS:YES. because he has already been

incarcerated for 6 months. kung destierroang prescribe penalty for cases of death

under exceptional circumstance wherein

the husband caught his wife in flagrante

delicto & he killed them while in the act

of making babies. You can kill both of

them & the prescribe penalty is destierro,

for purposes of protecting the accused

from the harm that the relatives of the

victims will bring to him.

- And if you will be ask whether somebodyhas been sentenced with destierro can

commit evasion of sentence? ANS: YES,

because destierro constitute also restriction

of your freedom or liberty so you can

commit the evasion of sentence.

(3) at the discretion of the court if the

accused has been in custody for a period

of equal to or more than the minimum of

the principal penalty prescribed for the

offense charged, without applying the

indeterminate sentence law or any

modifying circumstances.

(4) Under RA 9344 with respect to child 15

yrs old or below taking custody shall be

released to his parents, or guardian or in

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the absence of thereof the childs nearest

relative.

- if the parents, guardian or nearest relatives

cannot be located or they refused to take

custody, the child maybe released to any of

the following: the duly registered non-government organization, the barangay

official or a member of the barangay

counsel for the protection of the child, the

local social welfare & the devt officer or

where appropriate the dept. of DSWD.

- Now, class as much as possible when the

accused is a minor which we call the child

in conflict with law, the law provides that as

much as possible there should be an

alternative dispositions instead of detainingthem they should given to the care &

custody of his parents or govt. institution

which taking care of children & lately I

heard that Congress is planning that the age

of the criminal responsibility should be

reduced.

- there are so much objection now with

respect to the present law that the age of

criminal responsibility because at present 15

yrs & below is totally exempt, above 15 butbelow 18 depending whether the child in

conflict with law acted with discernment -

whether he knows what is right or wrong.

- What are the conditions of bail? Well in Sec

2 clearly stated but just to simplify it

actually to guaranty the penance of the

accused in all the stages of the trial &

becomes effective upon approval of the

court.

- Well finding the application for bail

sufficient in required & substance - the

judge approved. The dealer of the accused is

directed to release the accused until further

orders & then of course the undertaking

would be he should appear in those

instances under the rules in which the

accused is required to appear before the

court.

- in the issuance of a bench warrant - it is only

that court that issued it that can revoke it, it

cannot be interfered by other court and even

in an ordinary case when the case is filed fora particular accused & he is at large, let us

say, a case of homicide was filed before

RTC Naga but the accused cannot be located

his given address in Naga & he was found in

Manila, Can he apply for bail in Manila?

ANS: YES, because accdg to the rules he

can apply bail to the place where he was

arrested.

- Now, but in he case of bench warrant - it

cannot be interfered by other court it is onlythat court that issued the bench warrant who

can make any disposition of the warrant.

- In all stages, by the way tatanungin ko

sainyo sa finals - In what stages or instances

wherein the appearance of the accused is

required by the Rules: It should be

personally done by the accused himself. So

during arraignment. What else - during

promulgati on - fo r the purposes of

identifying the accused.- But there ought to be an order from the

court that his presence is required to be

present for purposes of identification - there

must be an order. ( you are hereby directed

to appear on this particular date for trial )

- During the arraignment you must be present,

in promulgation class, if that is only light

offenses promulgation can be done in

absentia by the accused provided, his lawyer

is present.

- but in cas es bef ore the RTC, can

promulgation proceed without the presence

of the accused ? ordinarily the accused

should appear during promulgation but in

instances where the accused has been duly

notified & needed to appear during the

promulgation, can the court proceed with

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the promulgation? ANS: If duly notified

pwede.

- How it is done? ANS: It is done by

recording the judgment in the criminal

docket of the court & serving the copy of

the decision to the accused at his lastknown address & also his counsel - thats

how you promulgate in absentia.

- But you there were an instance that

happened in Baguio a judge got angry

because the accused was not present when

his decision was about to be promulgate it

was only the counsel of the accused who

appear. Now, the case was called & the

accused was conspicuously absent it was

only the lawyer who appear & the judge askwhere is the accused Your honor I tried to

contact the accused but I cannot locate him

according to the judge Lets proceed with

the promulgation & Atty so & so do not sit

down you remain standing, OK Branch

Clerk promulgate the decision, of course the

lawyer pleaded to the court Your honor can

I take my seat? No you remain standing

thats how promulgation should be done, but

the counsel really pleaded to the courtbecause according to him he was not the

accused if he stand up katawatawa sya eh

para sya na ang akusado, but the judge did

not mind his pleadings so napilitan na yung

abogado, at lahat na mga present during the

presentation during the trial ay nakatingin sa

kanya as if sya ang na convict at convicted.

TAMA BA YONG GINAWA NG JUDGE ?

Right after the promulgation he filed a

complaint, an administrative complaint sabi

nya grabe pinahiya sya eh those are one of

the cases which accused were filed against

the judge & unfortunately the judge was

dismissed by the SC. of course not only in

that incident but other several incidents. You

know of the accused is not present you can

proceed promulgation in absentia - its not

how you do it - you are hereby ordered

considering the accused is not present Let

this decision be promulgated by recording to

the criminal docket & serving a copy to the

accused at his last known address & to his

counsel.- Take note class that there should no

movement of prisoners in the detention cell

without the court order otherwise, may

malilintikan dyan sa jail warden.

- Lately, in the new drug case in Cavite, the

accused was rescued by the syndicate yung

mga robbery...I was the one who filed the

case, I was surprised na hindi pa yon tapos.

because when i left that case there was an

appointment by the judiciary, halos pataposna yung prosecution eh. Its about a drug

laboratory. Kaya dapat maingat ka doon that

you just cannot simply transfer an accused

from their detention cell without the court

order, even if the accused is suffering an

ailment unless it is an emergency case the

jail warden has no authority to bring the

accused to the hospital. the jail warden

should ask permission of the court. This is

specifically provided under Sec 3.

- Now, ito na ang pinaka importante that you

need to consider in BAIL - WHEN BAIL IS

A MATTER OF RIGHT & WHEN BAIL IS

A MATTER OF DISCRETION.

- Sec 4 & Sec 5 is very basic cases of course

cases from MTC before & after conviction

bail is a matter of right.

- when we speak of AS a matter of right the

court has no discretion kung hindi i grant

yan otherwise if the court exercise excessive

discretion grave abuse of discretion yon

kaya nga a matter of right. The court is not

required to exercise discretion it cannot

afford to exercise discretion if the court

exercise discretion in cases bail a matter of

right thats grave abuse of discretion.

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- & before & after, yung cases ng kahit na

convict na, for example an offense the

prescribed penalty is presion mayor, before

conviction pwede mag bail, after conviction,

convicted na sya pwede mag bail as a matter

of right.- Now, of course before conviction, cases

within the jurisdiction of RTC, not

punishable by reclusion perpetua, by death,

life imprisonment - a matter of right yan.

- Now, after that, the judgment of conviction

by the RTC in cases of an offense not

punishable by death,reclusion perpetua or

life imprisonment,the nature of bail becomes

discretion.

- what about if the crime is a non bailableoffense, non bailable offense before you can

be granted the bail there ought to be a

hearing in the process of evaluation of the

evidence presented by the prosecution

during the trial wala naman qualifying

circumstance that would raise the killing to

murder sinabi lang ng court this is not a case

of murder but a case of homicide. Ngayon

can the accused apply for bail? YES,

because thats a matter of discretion & whoask on that note. Supposing that the

application is filed in court in the RTC that

convicted accused can the RTC that

convicted the accused can process the

affidavit? ANS: YES, for purposes of

transmittal to the CA in case if there is an

appeal.

- What happens if the accused is convicted in

which the prescribed penalty is more than 6

yrs but not more than 20 yrs, well the

accused can be granted on the same bail

subject to the consent of a bondsman, &

without the presence of 5 mitigating

circumstance like repeat offender ay hindi

na pupwede.

- The Rule is in cases of conviction like

murder, it is non bailable, in case of Leviste

he was only convicted of homicide instead

of murder ngayon nag apply sya ng bail sa

CA, sabi nya medyo masama ang

pakiramdam ko, I know bail in this case is a

matter of discretion since I have a valid

justification to grant bail for me on accountof his health pwede, mag grant ang aking

application for bail. You know class, sabi ng

SC pag ang akusado ay convicted kailangan

mas mataas ang antas ng pag process, did

the court should exercise a discriminating

view as much as possible if it cannot justify

the reasons for the grant of bail it should be

denied.

- But in cases of the presence of 5 mitigating

circumstances talaga no bail should beallowed.

- And what are these 5 mi t ig at ing

circumstances:

1) repeat offenders, recidivist, quasi recidivist

or habitual delinquent or commission of

crime aggravated by the circumstances of

reiteracion.

2) Previous escape from legal confinement,

evasion of sentence or violation of the

condi t ions of bai l wi thout val idjustification.

3) Commission of an offense while on

probation, parole or under conditional

pardon.

4) Circumstances of the accused or his case

indicates the probability of flight if

released on bail

5) Undue risk of commission of another

crime by the accused during pendency of

appeal.

- After conviction if the accused apply for

bail, the prescribe penalty is 6 yrs & 1 &

there are presence of these 5 mitigating

circumstance the bail should be denied &

should be provided with notice to the

accused & a hearing should be conducted to

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determine the presence of these 5 mitigating

circumstances.

- You will notice we still have what we call

the capital offense, for purposes of

discussion, remember class in our criminal

statute, the RPC, still the penalty of deathremains in our criminal statute, for example,

murder - what is the prescribe penalty for

murder - reclusion perpetua to death, in case

of qualified rape when the victim died & the

commission of rape was attended with the

use of bladed instrument or weapon, thats a

qualified rape & when the victim became

insane - thats qualified rape, so the

prescribed penalty is still reclusion perpetua

to death.- Now question, do we have still what we call

capital offense? ANS: YES, but the court

cannot imposed for that prescribe penalty

for that capital offense due to the enactment

of RA 9346 - An act prohibiting the

imposition of death penalty in the Phil,

which was promulgated on June 24, 2000.

- While capital offense remains in the

criminal statute, still we cannot avoid

talking about capital offense, but was hasbeen removed here is the imposition of the

penalty of death. There was no abolition or

specific amendment, only prohibition of the

death penalty.

- Technically there is no capital offense

because we cannot imposed the death

penalty in view of RA 9346, however death

penalty as a penalty still remains in the

statute.

3/5/2013 RIGHT OF THE ACCUSED

Right to Counsel

- To briefly emphasize the right to counsel,

the difference between the right to counsel

in custodial investigation & during trial - in

custodial investigation you need a

competent & independent counsel, in the

trial you just need an effective counsel

because the danger that the counsel in the

voluntary statement that he made is

removed, as a matter of fact the counsel in

the course of trial, his obligation to tell hisclient to tell the truth, kung sasabihin na

atty. aamin na ako kasi ginawa ko talaga

eh, can you prevent him? The rule of the

lawyer is not to prevent the accused who

wants to plead guilty.

- As counsel it is your duty to tell the truth.

- The right to counsel during the trial - what

you need is an effective counsel. An

effective counsel does not prevent you from

telling the truth & to plead guilty to theoffense charge.

- The right to counsel is not an absolute right

& can be waived & the accused can

represent himself.

- During the trial there are questions during

cross that the accused maybe subjected to a

criminal prosecution, the accused can

invoke his right to remain silent. He can

invoke it at anytime & it could not be taken

against him. However, his mere silence isthat effective but his failure to present

evidence that could definitely affect his

defense, can you just imagine if he does not

present any evidence in his favor that the

court will rely only on the evidence of the

prosecution, so most likely the accused can

be convicted unless the evidence presented

by the prosecution is requiring quantum of

proof to prove the guilt of the accused

beyond reasonable ground.

- Another right of the accused is to be

exempt from being compelled to a witness

against himself - in the course of the trial

the objection that you can make is

objection your honor the accused may

interpose that the accused should not

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answer that because the accused is invoking

his right against self-incrimination . Well

what is contemplated here is actually the

exercise of intelligence. If it is only

mechanical like lifting up your shirt to

determine whether you have a tattoo on yourchest, any objection to that cannot be

sustained because it does not account to

compulsion as it would not exercise

intelligence.

- But in the prosecution of falsification of

public documents, if the accused will be

required to write down his signature, writing

his signature would entail the exercise of his

intelligence thus the accused properly &

interposed an objection against this tightagainst self-incrimination.

- Your right to be exempt from being

compelled to be a witness against himself.

Imagine if you will allow that scene,

papirmahin mo sya, & it is strikingly similar

to the falsified document the accused would

be convicted of the crime charged. So if you

were the counsel you have to be alert to

invoke that right from being compelled to be

a witness against yourself let the prosecutionprove its case.

- Actually the trend now in SC is allowing the

DNA test, as a matter of fact a lot of cases

which were dismissed & the accused were

acquitted because of the result of the DNA

test, as in the case of Webb they were

invoking lets look up the specimen that you

gathered & compare to our sperm if it could

match. eh hindi pig present ng prosecution

so kung may sinasabi na there is a

spermatozoa in the remains of the private

parts & then you are very sure that it is not

your sperm you better avail this DNA test.

- The Right To Confront the Witnesses well

usually this happens when the witness is

presented, you have to cross examine to

test the credibility of the witness, so cross

examination is the tool to determine whether

a particular witness is telling the truth or not

thats why this right to cross examination to

confront witness is a very important right of

the accused.- there are instances that you cannot anymore

cross examine the witness because he could

no longer found, the witness is already 6

feet under, so you cannot excavate his grave

& bring him to the court to testify, but class,

in the event that said witness who could no

longer be found whether he is abroad or

already dead, the testimony that he give in

another proceedings invoking the same

parties in which the other party was giventhe opportunity to cross examine that

testimony can be utilized.

- How do you do that - this is what being

done - you just get the transcript, the

REQUISITES are: the parties are the same

pa r ty which involve in the o ther

proceedings, the other party was given the

opportunity to cross examine that

unavailable witness who is already dead,abroad or no longer be found & then that

transcript of the stenographer during the

testimony of that witness should be

presented in court & mark it as an exhibit,

you will say your honor i have here the

stenographic note of the witness in which

we are the same parties the prosecution was

given the opportunity to present & i would

like to avail the testimony of this particular

witness who is no longer available & that is

my right & I am marking this stenographic

note of testimony of the witness as part of

my evidence - then mark it as a particular

exhibit. and dont forget at the end of your

presentation of evidence you formally offer

it, kasi its a documentary evidence,

although testimonial pa rin ang contents but

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of course but for purposes of formally

offering it like it should be treated like an

ordinary document formally offered in

court. Dont forget that.

- To Have Compulsory Process Issued tosecure the Attendance of Witnesses &

Production of Other Evidence in His

Behalf - supposing you know a witness, a

government official who has the custody of

the document in which your defense will be

strengthened & you need his testimony &

this official refuses to testify, you have the

right to ask the court to compel that public

official to testify.

- YOU ask the court for a subpoena for thatparticular witness to be present & testify in

court - thats the right of the accused to have

a compulsory process.

- And remember that between the powers of

government & the right of the State in its

citizens , talagang you can just imagine the

disparity of the position, hence, in order that

the accused would not be wrongfully

convicted he should be afforded of the

opportunity to defend himself, & one themis to have that right to compulsory process

to ask the court Your honor may I ask for a

subpoena for a particular public official & I

have already talk to him & he refuses to

testify. You can ask the court for the

issuance of the subpoena.

- What is the consequence of the failure of the

public officer to obey the subpoena of the

court - will he could be cited in contempt &

you can just imagine if the court resort to

incarcerate you until such time you comply

the order of the court to testify.

- You can just imagine if a person is

wrongfully convicted simply because he

was deprived of the opportunity to secure an

evidence & it is the duty of the State also

that the case of the people should be based

on truth & justice, hindi lang a matter of

persecution.

- The Right to have a speedy, impartial

public trial- how do you invoke this right to speedy trial

- well, if you will examine the jurisprudence

on this matter, first you have to demand, &

usually if you demand there are already

several postponements, for example,

arraignment, if you are a detained accused

for a particular crime, lets say the case of

murder, under the Rules from the time your

case was raffled, the court should set your

case for arraignment within 10 days afterraffle. Now, if you will not be arraigned in

that period & several postponements until it

is already 1 yr, 2 yrs & you are not yet been

arraigned, then you can invoke your right to

a speedy trial.

- For 1 year hindi ka na arraigned it is a clear

violation of your right to a speedy trial.

Now, & if the court found that talagang the

prosecution is remissed despite repeated

warnings, & by the way the determinationwhether there is already an undue delay

could not be ascertained merely by

falsification of giving you ample time, its

about whether the prosecution has been

given ample opportunity, repeatedly warned

by the court & yet failed to perform its duty

in which case the court has no other choice

but to sustain the invocation by the accused

of his right to a speedy trial & if you will

look at the jurisprudence, usually yung case

di pa nachacharge, for example yung case ni

Tatad f

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