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but not the admissions made before Judge Dicon, inasmuch


RIGHTS OF THE ACCUSED as the questioning by the judge was done after the suspect
Sources: Kwin Notes, Constitutional Law by Cruz, had been arrested and such questioning already
and Political Law Review by Nachura constituted custodial investigation. (People v. Baloloy, G.R.
No. 140740, April 12, 2002)

FREE ACCESS TO COURTS 3. Right not to be places in a solitary confinement;


ARTICLE III, SEC. 11 provides:
Free access to the courts and quasi-judicial bodies and 4. Right against forced violence, intimidation and by means
adequate legal assistance shall not be denied to any person that would vitiate his free will to be used against him that
by reason of poverty. will extract confession or admission Person responsible for
that can be held civilly, criminally or administratively liable.
This is a social justice provision, implemented by the Rules
of Court provision allowing pauper suits. The victim for such violence and intimidation is entitled to
compensation and rehabilitation.
RIGHTS OF SUSPECTS WHILE IN CUSTODY
ARTICLE III, SEC. 12 provides: CUSTODIAL RIGHTS/MIRANDA RIGHTS
(1) Any person under investigation for the commission of an a.right to remain silent
offense shall have the right to be informed of his right to b.right to be assisted with counsel
remain silent and to have competent and independent c.right to be informed that he has these rights
counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. WHAT CONSTITUTES CUSTODIAL INVESTIGATION
These rights cannot be waived except in writing and in the In order to understand these rights, first you must know
presence of counsel. what would constitute a custodial investigation.
(2) No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used against It is an investigation conducted by a law enforcer, like PNP,
him. Secret detention places, solitary, incommunicado, or FBI, CIDG, and other offices that is tasked with the
other similar forms of detention are prohibited enforcement of the law.
(3) Any confession or admission obtained in violation of this
or SECTION 17 hereof shall be inadmissible in evidence It must be done by the law enforcer immediately after the
against him. accused is arrested, or he is in any way deprived of his
(4) The law shall provide for penal and civil sanctions for freedom of action.
violations of this SECTION as well as compensation to the
rehabilitation of victims of torture or similar practices, and Custodian Investigation has been defined as any
their families. questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived
RIGHTS OF SUSPECTS WHILE IN CUSTODY of his freedom of action in any significant way. (People v.
This is with reference to a right of suspects while he is in Judge Ayson, 175 SCRA 216)
custody of law.
1. Right not to be made to answer for any criminal offense WHEN THERE IS A CUSTODIAL INVESTIGATION
without due process There is custodial investigation already when the person is
arrested.
Due process being referred to here is both substantive and
procedural. When you are invited merely for questioning related in the
crime under RA 7438, which is already considered as part of
Substantive, meaning there has to be a law punishing the the accused being placed in the custody of law.
act for which he is being charged. Because even if the act
complained of is immoral, it would not necessarily Under R.A. 7438, custodial investigation shall include the
constitute a crime unless there is a law defining it as a practice of issuing an invitation to a person who is
crime. investigated in connection with an offense he is suspected
to have committed, without prejudice to the liability of the
On a procedural aspect, you have to go through the inviting officer for any violation of law.
procedure of due process that he is given a day in court
before the accused shall be indicted and ultimately be It was held that from the time Del Rosario was invited for
made to answer for the charges. questioning at the house of the barangay captain, he was
already under effective custodial investigation. Because he
2. MIRANDA RIGHTS OF THE ACCUSED was not apprised nor made aware thereof by the
a.right to remain silent investigating officers, and because the prosecution failed to
b.right to be assisted with the competent and independent establish that Del Rosario had waived his right to remain
counsel - Preferably of his own choice. silent, his verbal admissions were inadmissible against him.
c.right to be informed that he has these rights (People v. Del Rosario, G.R. No. 127755, April 14, 1999)

The Miranda rights apply only from the moment the The accused should have been entitled to the Miranda
investigating officer begins to ask questions for the purpose rights, because even assuming that he was not yet under
of eliciting admissions, confessions or any information from interrogation at the time he was brought to the police
the accused. (De la Torre v. Court of Appeals, G.R. No. station, his confession was elicited by a police officer who
102786, August 14, 1998) promised to help him if he told the truth. (People v. Lugod,
G.R. No. 136253, February 21, 2001)
It was held that this guarantee does not apply to a
spontaneous statement, not elicited through questioning by WHEN THERE IS NO CUSTODIAL INVESTIGATION
the authorities but given in an ordinary manner whereby
the suspect orally admitted having committed the offense. What is not covered by custodial investigation?
Neither can it apply to admissions or confessions made by a
suspect before he was placed under custodial investigation. 1. POLICE LINE UP
In this case, the narration before the Barangay Captain In other words, custodial investigation has not yet
prior to custodial investigation was admissible in evidence, commenced even if the person is being placed in a
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temporary custody of law for purposes of identification, he circumstance. The booking sheet is no more than a record
is PLACED IN A POLICE LINE UP. of arrest and a statement on how the arrest was made. It is
simply a police report, and it has no probative value as an
In a police line-up, the process has not yet shifted from the extrajudicial statement of the person being detained. The
investigatory to the accusatory stage, and it is usually the signing by the accused of the booking sheet and the arrest
witness or the complainant who is interrogated and who report is not a part of custodial investigation. (People v.
gives a statement in the course of the line-up. (People v. Manzano, G.R. No. 86555, November 16, 1993)
Amestuzo, G.R. No. 104383, July 12, 2001)
3. SPONTANEOUS STATEMENT
Where three eyewitnesses identified the accused at the Take note of the manner that the statement or admission
police station as the person who shot the victim at the scene or confession was made by the accused. Was it made by
of the crime, the accused cannot claim that he was him before he was arrest? Spontaneously? Then that is not
deprived of his constitutional rights even if he was without yet covered by the custodial investigation entitling him of
counsel at the time, because he was not yet then under the custodial rights?
custodial investigation. (People v. Dagpin, G.R. No. 149560,
June 10, 2004) Spontaneous statements, or those not elicited through
questioning by law enforcement officers, but given in an
POLICE LINE UP ordinary manner where the appellant verbally admits to
A police line up as a general rule is not part of custodial having committed the offense, are admissible. (People v.
investigation yet. And for this reason, he is not entitled to Guillermo, G.R. No. 147786, January 20, 2004)
Miranda rights.
4. RES GESTAE OR ADMISSION TO PRIVATE INDIVIDUAL
However, where the accused, having become the focus of Or was it made res gestae to a private individual even to a
attention by the police after he had been pointed to by a law enforcer for as long as he has not been deprived yet of
certain Ramie as the possible perpetrator of the crime, it any freedom of action then that is still considered
was held that when the out-of-court identification was admissible in evidence.
conducted by the police, the accused was already under
custodial investigation. (People v. Escordial, G.R. Nos. Or when the suspect made a confession to the media
138934-35, January 16, 2002) because the media is not a law enforcer, which is admissible
in evidence.
WHEN SEIZE TO BE EXPLORATORY INVESTIGATION
Of course when we speak of police line-up, it has to be the Or to any private individual, the admission or confession is
accused placed in a line-up of suspects, not just one person admissible to evidence, even if he was not informed of his
placed in a line where he is made to be identified by a Miranda rights.
witness; in which case, you zero in on him as the only
suspect in the commission of the crime. And the moment The declaration of the accused acknowledging guilt made
that you have done that to the accused, the accused will to the police desk officer after the crime was committed
be entitled of his rights because it seizes now to be just an may be given in evidence against him by the police officer
exploratory investigation, now it starts as a custodial to whom the admission was made, as part of the res gestae.
investigation. (People v. Dy, 158 SCRA 111)

2. INVESTIGATION BY ADMINISTRATIVE OFFICES A. RIGHT TO REMAIN SILENT


Investigation conducted as well by administrative It is the right not to be a witness against himself. It is right
government offices through their investigators are not against testimonial compulsion. This is equivalent to right
covered by custodial investigation. against self-incrimination during criminal prosecution.

Custodial investigation usually covers criminal investigation, This is derived from the case of Miranda vs Arizona. This is
not administrative investigation which may be private or equivalent to the 5th amendment of the US. that he may
governmental administrative investigation. not be compelled to discuss to any query that may form a
self-incriminating evidence against him.
Example: A COA audit examination where the accused has
made an admission. The admission is admissible in evidence PURPOSE
even if at the time of his admission or confession, he was not The purpose of having such right is so that his testimony
assisted with counsel because administrative investigation is which may have been made during a custodial
not covered by custodial investigation. investigation cannot be just discriminately used against
him.
A person under normal audit investigation is not under
custodial investigation, because an audit examiner can RE-ENACTMENT OF A CRIME
hardly be deemed to be the law enforcement officer Not being clear from the record that before the
contemplated in the rule. (Navallo v. Sandiganbayan, 234 re-enactment was staged by the accused, he had been
SCRA 175) informed of his constitutional rights, and that he had
validly waived such rights before proceeding with the
Because the Court Administrator is not a law enforcement demonstration, the Supreme Court declined to uphold the
officer, an investigation conducted by him does not admissibility of evidence relating to the re-enactment.
constitute custodial investigation within the contemplation (People v. Luvendino, 211 SCRA 36)
of the constitutional guarantee. (Office of the Court
Administrator v. Sumilang, 271 SCRA 316) BODY USED AS EVIDENCE/MERE MECHANICAL
ACTS
An investigation conducted by the Civil Service Commission What if it is his body that is used as evidence, like?
involving fake eligibility is not custodial investigation. a.paraffin testing
(Remolona v. Civil Service Commission, G.R. No. 137473, -to determine the presence of gun powder fluorescent
August 02, 2001) powder test
-to determine if he had received the marked money
When an arrested person signs a booking sheet and an a.pregnancy test
arrest report at the police station, he does not admit the b.DNA test
commission of an offense nor confess to any incriminating c.photographing of the accused
Page 3 of 12
d.measuring of the body of the accused The lawyer, however, should never prevent an accused
Take note that all these are MERE MECHANICAL ACTS. from freely and voluntarily telling the truth. (People v.
They would form part as real evidence as part of the Enanoria, 209 SCRA 577)
physical evidence where the body is used as evidence. They
are admissible as evidence. B. VIGILANT IN PROTECTING RIGHTS OF ACCUSED
The requirement is he must be one who is vigilant in
SCOPE MAY NOT BE COMPELLED TO GIVE protecting the right of the accused.
1. Oral utterances or verbal answers to queries that may be
made by a law enforcer C. PRESENT DURING THE QUESTIONING
2. Anything that is communicative in nature -such as He must be present during the conduct of the hearing, not
asking him to reenact how the crime is committed. after he was questioned by the law enforcer and the
3. Sample of handwriting lawyer just arrived to notarize the statement of the
- Because giving a sample of handwriting is not a pure accused. That would not be a competent counsel.
mechanical act
- But if he is confronted with a document and he The duty of the lawyer includes ensuring that the suspect
immediately denies any writing as his, that is tantamount under custodial investigation is aware that the right of an
to a waiver of his right. The moment he makes the denial, accused to remain silent may be invoked at any time.
he may be compelled a sample of his writing to compare it (People v. Sayaboc, G.R. No. 147201, January 15, 2004)
with the writings in the document subject of the offense.
4. Arrest on booking sheets It was held that custodial investigation commenced when
-that is self-incriminating. the accused Ordono and Medina voluntarily went to the
-you cannot be made to sign an arrest booking or an Santol Police Station to confess, and the investigating
inventory receipt without informing the accused of his officer started asking questions to elicit information from
Miranda rights. them. At that point, the right of the accused to counsel
automatically attached to them. (People v. Ordono; G.R.
No. 132154, June 29, 2000)
WAIVABLE
Is the right to remain silent waivable? D. INDEPENDENT
YES. Independent, meaning, no conflict of interest with respect
However if he has to make a confession, it has to be: to the interest of the accused.
1.free, voluntary, done intelligently
2.done in the presence of his lawyer So that if he has interest in the outcome of the case that is
3.reduced in writing personal to the lawyer contrary to the interest of the
4.done under oath accused, then he is not an independent counsel.
In RA 7438, there are other requirements like:
5. Done in the presence of: The desired role of lawyer in the process of custodial
a.a relative investigation is rendered meaningless if the lawyer merely
b.supervisor of DEPS gives perfunctory advice as opposed to meaningful
c.mayor advocacy of the rights of the person undergoing
d.local officials in the area questioning. If the advice given is so cursory as to be useless,
Purpose: voluntariness is impaired. (People v. Suela, G.R. Nos.
a.To witness his signing 133570-71, January 15, 2002)
b.To guaranty that there was no force, violence or
intimidation or any means to vitiate his free will was used To be competent and independent, it is only required for
in extracting admission or confession the lawyer to be willing to safeguard the constitutional
6. In writing and duly notarized rights of the accused, as distinguished from one who would
merely be giving a routine, peremptory and meaningless
B. RIGHT TO BE ASSISTED WITH COUNSEL recital of the individuals constitutional rights. (People v.
Bagnate, G.R. Nos. 133685-86, May 20, 2004)
COMPETENCE
The Supreme Court stressed that the Constitution requires
The Supreme Court held that the right to counsel attaches that the counsel be independent. Obviously, he cannot be a
upon the start of the investigation, i.e., when the special counsel, public or private prosecutor, counsel of the
investigating officer starts to ask questions to elicit police, or a municipal attorney, whose interest is admittedly
information and/or confessions or admissions from the adverse to the accused. As legal officer of the municipality,
respondent. At that point, the person being interrogated it is seriously doubted whether a municipal attorney can
must be assisted by counsel to avoid the pernicious practice effectively undertake the defense of the accused without
of extorting false or coerced admissions from the lips of the running into conflict of interest. (People v. Bandula, 232
person undergoing investigation. (Gamboa v. Cruz, 162 SCRA 565)
SCRA 642)
PREFERABLY ON THE CHOICE OF THE ACCUSED
The right to counsel is not required in a police line-up, NOT ABSOLUTE
inasmuch as police line-up is not part of the custodial What we mean there is that the choice by the accused of
inquest. Neither may this right be invoked when the his lawyer is not absolute and exclusive.
suspect is given a paraffin test, as he is not yet under
custodial investigation. (People v. de Guzman, 224 SCRA If he cannot afford the services of counsel, it is the
93) obligation of the law enforcer to provide a COUNSEL DE
OFFICIO to the accused.
A. LAWYER
As regards to competence, as long as he is a lawyer. If he is It is not exclusively his choice to choose his own lawyer.
not a lawyer and the accused did not know that fact,
whatever confession or admission made is inadmissible in The phrase preferably of his own choice does not convey
evidence. the message that the choice of a lawyer by a person under
investigation is exclusive as to preclude other equally
You need not be a bar topnotcher. competent and independent attorneys from handling the
defense. (People v. Barasina, 229 SCRA 450)
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Fruit of the Poisonous Tree Rule
WAIVABLE The rule is based on the principle that evidence illegally
Is the right to counsel waivable? obtained by the State should not be used to gain other
YES. evidence, because the originally illegally obtained evidence
But it must be done: taints all evidence subsequently obtained. (Nardone v. U.S)
1.in writing
2.in the presence of counsel Waiver: For failure of the accused to object to the offer in
evidence, the uncounseled confession was admitted in
ASSISTANCE OF COUNSEL IN AN ADMINISTRATIVE evidence. (People v. Samus, G.R. Nos.. 135957-58,
September 17, 2002)
INVESTIGATION NOT REQUIRED
RIGHT TO BAIL OR RECOGNIZANCE
A party in an administrative inquiry may or may not be ARTICLE III, SEC. 13 provides:
assisted by counsel. (Ampog v. CSC, 253 SCRA 293) All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall,
While investigations by administrative body may at times before conviction, be bailable by sufficient sureties, or be
be akin to criminal proceedings, a party in an released on recognizance as may be provided by law. The
administrative inquiry may or may not be assisted with right to bail shall not be impaired even when the privilege
counsel, irrespective of the nature of the charges and the of the writ of habeas corpus is suspended. Excessive bail
respondents capacity to represent himself and no duty rests shall not be required.
on such body to furnish the person investigated by counsel.
(Perez vs People) BAIL
It is the security given for the release of a person in custody
In other words, that mandatory aspect on the assistance of of the law, furnished by him or a bondsman, conditioned
counsel is only in custodial investigation, not even in a upon his appearance before any court as may be required.
criminal prosecution, except for arraignment. (Rule 114, Sec. 1, Rules of Court)

In administrative, it is not mandatory. In other words, if you WHEN RIGH TO BAIL IS AVAILABLE
are an investigating authority, you are not obliged to Another right of the accused before a criminal prosecution
provide him with counsel de officio in an administrative is the right to bail.
case.
Take note that right to bail is available even before the
RIGHT TO BE INFORMED OF SUCH RIGHTS filing of charges against the accused for as long as he is
deprived of his physical liberty illegally.
The Supreme Court said that this contemplates the
transmission of meaningful information rather than just the The right to bail emanates from the right to be presumed
ceremonial and perfunctory recitation of an abstract innocent. It is accorded to a person in custody of the law
constitutional principle. (People v. Nicandro, 141 SCRA 289) who may by reason of the presumption of innocence he
enjoys, be allowed provisional liberty upon filing a security
The right to be informed carries with it the correlative to guarantee his appearance before any court, as required
obligation on the part of the investigator to explain, and under specific circumstances. (People v. Fitzgerald, G.R. No.
contemplates effective communication which results in the 149723, October 27, 2006)
subject understanding what is conveyed. Since it is
comprehension sought to be attained, the degree of It was held that the right to bail cannot be denied one who
explanation required will necessarily vary and depend on is charged with rebellion, a bailable offense. (People v.
the education, intelligence and other relevant personal Judge Donato, 198 SCRA 130)
circumstances of the person under investigation. (People v.
Agustin, 240 SCRA 541) REMEDIES OF ACCUSED BEFORE FILING OF
CHARGES
Confessions/admissions obtained in violation of rights are So if there are no charges yet filed in court, what would
inadmissible in evidence. then be the remedy of the accused?
The alleged infringement of the constitutional rights of the Either:
accused during custodial investigation is relevant and 1.File habeas corpus
material only where an extrajudicial confession or 2.Post bail by petitioning the court the fixing of his bail.
admission from the accused becomes the basis of conviction. Here there could be:
(National Bureau of Investigation v. Judge Ramon Reyes, 1. Bail bond
A.M. -MTJ-97-1120, February 21, 2000) a.cash
b.surety
The 1973 Constitution did not distinguish between verbal c.property
and non-verbal confessions; as long as the confession is 2. Recognizance
uncounseled, it is inadmissible in evidence. What is sought
to be avoided by the rule is the evil of extorting from the
CHOICE OF REMEDY IS IN ACCUSED
very mouth of the person undergoing interrogation for the
It is not however the choice of the judge which of kind of
commission of an offense the very evidence with which to
bail that accused must avail. It is the choice of the accused.
prosecute and thereafter convict him. (People v. Bonola,
G.R. No. 116394, June 19, 1997)
BAIL BOND
Even as the extrajudicial confession was in writing and Bail bond is a guaranty of the appearance or the
signed by counsel, because the accused was not given the attendance of the accused when he is out on bail or when
Miranda warnings [i.e., informed of his right to remain he is enjoying his provisional liberty; that whenever the
silent, that anything he says can and will be used against court requires his attendance, he would appear in court.
him, and that he is entitled to the assistance of counsel], the
confession was held inadmissible in evidence. (People v. It could either be posted in cash, the title of his property or
Samolde, G.R. No. 128551, July 31, 2000) tax declaration or it could simply be a surety guarantying
his appearance in court.
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But the moment it is decided as provided in the rules of
RECOGNIZANCE criminal procedure, that the accused:
Recognizance on the other hand is another form of a.is a recidivist,
guaranty to the court that while he is out on provisional b.a habitual delinquent,
liberty, he would appear in court. He is just being released c.has evaded his sentence,
to a responsible authority or individual to guaranty his d.has passed records of conviction,
appearance in court whenever it is needed in court. e.has jumped bail before,
f.He had violated his provision, that discretion of the trial
WHEN BAIL IS A MATTER OF RIGHT, court is removed. In other words the trial court has to
DISCRETIONARY, DENIED cancel the bail bond and deny the appeal for or the plead
The most important issue in right to bail is knowing when it for continue of provisional liberty under the same bail
is a matter of right and when it is discretionary and when it bond.
should be denied. It depends on the offense charged.
Should there be any application of bail, it will be addressed
now to the CA which has now the discretion to grant it or
A. WHEN THE OFFENSE CHARGED IS TRIABLE IN
not.
MTC
WHEN OFFENSE IS CAPITAL PENALTIES UNDER
TRIAL IN MTC
RPC AND SPL TO QUALIFY AS CAPITAL
When the charge against the accused is triable before the
If the accused is charged with a capital offense; when we
first level courts; MTC, before conviction, it is a matter of
speak of capital offense, under RPC, we mean the penalty
right.
is reclusion perpetua to death.
AFTER CONVICTION IN MTC AND APPEALED TO If it is a special law, it is considered as capital offense when
RTC the penalty is life imprisonment.
After conviction, and has appealed the conviction to RTC, it
is still a matter of right because the penalty does not BEFORE CONVICTION
exceed 6 years of imprisonment.
DETERMINATION OF EVIDENCE OF GUILT -
IF JUMPED BAIL DISCRETIONARY
What if he jumped bail, would it still be a matter of right? Because you have to determine whether evidence of guilt is
Yes. The court can only increase the amount of bail but strong, the court has discretion to evaluate the evidence of
cannot deny the accused the right to bail. the prosecution whether the evidence of guilt on the part
of the accused is strong.
B. WHEN THE OFFENSE CHARGED IS TRIABLE IN
RTC While the recommendation of the fiscal is to recommend
bail, the accused still has the right to petition for bail. And it
In RTC, is it a matter of right before conviction? is mandatory for the court to conduct a hearing even if the
It depends on the offense charged. fiscal will make a manifestation that it has no objection for
the accused to apply for bail.
1. IF PENALTY IS RECLUSION PERPETUA TO DEATH
The point is, it is mandatory that there must be a conduct
- BEFORE CONVICTION of hearing to determine WON the evidence of guilt is
When the penalty is less than reclusion perpetua to death, strong.
IOW it is not a capital offense, (so reclusion temporal
downwards), before conviction, it is a matter of right. So in that sense, before conviction, it is discretionary.

- AFTER CONVICTION WHEN EVIDENCE OF GUILT IS FOUND STRONG


Once he is convicted of offenses not punishable by reclusion DENIED
perpetua to death or life imprisonment, it is discretionary But the moment the court makes a declaration that the
on the trial court except when the condition is attended by evidence of guilt is strong, even before conviction, that
an aggravating circumstance, or he has previous record of discretion is removed. And therefore, the right to bail
jumping bail before. should be denied.
2. IF PENALTY IS MORE THAN 6 YEARS WHEN BAIL SHOULD BE DENIED
Take note when the penalty is more than 6 years, it should 1. CHARGED WITH CAPITAL OFFENSE AND EVIDENCE
be denied. If there is an application for bail, it will be now OF GUILT IS STRONG
for court of appeals to grant it or not; discretionary of the The exception therefore of the right to bail refers only to
appellate court, but not of the trial court. persons who are charged with capital offenses and the
evidence of guilt is strong.
WHEN OFFENSE IS NON CAPITAL
- BEFORE CONVICTION The Supreme Court said that where the accused is charged,
Where the offense is non capital, before the conviction, it is with an offense punishable by reclusion perpetua, it is the
a matter of right, no matter how many times you have duty of the judge to determine if evidence of guilt is strong
jumped bail. There can only be an increase in the risk, by for purposes of deciding whether bail may be granted or
increasing the amount of bail. not. (Carpi v. Judge Maglalang, 196 SCRA 41)
The Court reiterated the rule that bail is not a matter of
- AFTER CONVICTION right in cases where the offense for which the accused
GENERAL RULE stands charged is punishable by reclusion perpetua when
But the moment the accused is convicted, that would be a the evidence of guilt is strong. (Buzon v. Judge Velasco, 253
different story. As a GR, it would be discretionary of the SCRA 601)
trial court, while the judgment of conviction is appealed to
the CA. 2. CONVICTED WITH CAPITAL OFFENSE IN RTC
With more reason that he is convicted, that it should be
EXCEPTION denied.
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3. NOT AVAILABLE IN THE MILITARY CONSIDERATION OF PRIVILEGE MITIGATING
The Court observed that "the right to speedy trial is given CIRCUMSTANCE OF MINORITY
more emphasis in the military where the right to bail does There is a minor who has been charged with a capital
not exist. The denial; of the right to bail to the military offense; taking into consideration the privilege mitigating
does not violate the equal protection clause because there circumstances of minority which is one degree lower of the
is substantial distinction between the military and civilians. prescribed penalty; if the prescribed penalty is reclusion
(Arula v. Espino, 28 SCRA 540) perpetua, one degree lower, taking into consideration the
privilege mitigating circumstance, it will now be reclusion
WHEN BAIL IS DISCRETIONAY temporal, then it seizes to be a capital offense as far as the
1. CONVICTED WITH NON CAPITAL OFFENSE minor is concerned. Can he now avail of his right to bail?
It is only when he is convicted of a non-capital offense YES.
(murder to homicide or rape to acts of lasciviousness), can
the accuse now apply for bail. RIGHTS OF THE ACCUSED DURING CRIMINAL
PROSECUTION
DETERMINATION OF GRANT IS BASED ON ARTICLE III, SEC. 14 provides:
ORIGINAL CHARGE (1) No person shall be held to answer for a criminal offense
Insofar as the trial court is concerned in determination without due process of law.
whether or not bail should be granted, the basis should be (2) In all criminal prosecutions, the accused shall be
the original charge, not the conviction. Because the presumed innocent until the contrary is proved, and shall
moment the case is brought to the appellate court, it will enjoy the right to be heard by himself and counsel, to be
undergo practically a new trial. informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
It is possible that the decision of the lower court may be the witnesses face to face, and to have compulsory process
reversed and instead maintains the original charge by CA. to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial
So even if the accused is convicted only for a lesser offense, may proceed notwithstanding the absence of the accused:
not the original charge which is a capital offense, still that Provided, that he has been duly notified and his failure to
right to bail should be denied. Should one apply for bail, it appear is unjustifiable.
should be addressed to the appellate court, now that he
case is being elevated to the appellate court and it is RIGHTS OF ACCUSED DURING CRIMINAL PROSECUTION
discretionary to the appellate court to grant it or not. But 1.PRESUMPTION OF INNOCENSE
in the trial court, it should be denied. 2.RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
OF ACCUSATION AGAINST HIM
BAIL NOT AVAILABLE FOR MILITARY MEN 3.RIGHT TO BE HEARD BY HIMSELF OR COUNSEL
Take note bail is not available for military men, regardless 4.RIGHT TO A SPEEDY IMPARTIAL AND PUBLIC TRIAL
of the nature of the offense charged. 5.RIGHT TO FACE TO FACE CONFRONTATION OF THE
WITNESSES OF THE PROSECUTION
BAIL NOT AVAILABLE FOR ADMINISTRTIVE 6.RIGHT TO COMPULSORY PROCESS
PROCEEDINGS
This is not also available in administrative proceedings. PRESUMPTION OF INNOCENSE

BAIL AVAILABLE ONLY IN CRIMINAL BURDEN OF PROOF ON THE PROSECUTION


PROCEEDINGS The bottom-line line here is not for the accused to prove.
This is only available in criminal proceedings. Rather it is the duty of the prosecution to prove his guilt
beyond reasonable doubt.
BAIL GENERALLY NOT AVAILABLE FOR
The provision of an election statute which disqualified from
DEPORTATION AND EXTRADITION PROCEEDINGS
running for public office any person who has committed
Therefore bail is not available for deportation proceedings,
any act of disloyalty to the State provided that the filing
except if there is a compelling reason, for humanitarian
of charges for the commission of such crimes before a civil
reason for example, like the deportee is not acceptable in
court or military tribunal shall be prima facie evidence of
any country including his country of origin.
such fact, was declared unconstitutional for being violative
of the presumption of innocence clause. (Dumlao v.
For as long as there is a guaranty that he will not flee or
Comelec, 95 SCRA 392)
not violate the laws of the country where he is detained,
then he is allowed.
DOUBTS RESOLVED IN FAVOR OF THE
But the GR is it is not available as well in deportation, PRESUMPTION OF INNOCENCE
including extradition proceedings, since these are not In case of doubt, it has to be resolved in favor of the
criminal proceedings. accused because of the presumption of innocence.

Take note of the case involving the Government of HK; RULE ON EQUIPOISE
potential extradite may be granted bail on the basis of Where the evidence of both is balanced, it has to be
clear and convincing evidence that the person is not a flight resolved in favor of presumption of innocence. And that is
risk and will abide with all the orders and processes of the the rule on equipoise.
extradition court.
But generally, it is not available in extradition proceedings The equipoise rule invoked by the petitioner is applicable
as it was emphasized in the case of Government of USA vs only where the evidence adduced by the parties are evenly
Borongganan. (Special Administrator vs Judge Oladia) balanced, in which case the constitutional presumption of
innocence should tilt the scales in favor of the accused
The constitutional right to bail flows from the presumption [Corpus v. People, 194 SCRA 73].
of innocence in favor of every accused who should not be
subjected to the loss of freedom as thereafter hewould be PREVAILS OVER PRESUMPTION OF GUILT BY LAW
entitled to acquittal unless his guilt be proved beyond Those commissions relating to presumptions of law; can
reasonable doubt. (People v. Jimenez) they be reconciled?
Page 7 of 12
In case of doubt, what should always prevail is the attorney whose interest is admittedly adverse to that of the
presumption of innocence. accused. (Estrada v. Badoy, A.M. No. 01-12-01-SC, January
16, 2003)
Presumption of guilt by the law like anti fencing law and
some anti-graft laws, what would shift is only the burden of 1. DURING ARRAIGNMENT
proving his innocence. The moment he overcomes the The presence of the accused in the arraignment is
presumption of law, he continues to enjoy the presumption indispensable. That cannot be waived. The reading may be
of innocence. waived, but his presence is indispensable.

PRESUMPTION OVER PRESUMPTION OF 2. DURING TRIAL


REGULARITY IN PERFORMANCE GENERAL RULE: During the trial, the presence of the
What about presumption of regularity in the performance accused can be waived. Provided that, it is not for
of duty? identification purposes.
It is always presumption of innocence that will prevail.
EXCEPTION: So during the trial he need not be present,
The fact that SP01 Alilio was presumed to have regularly except when he is needed for identification by the witnesses
performed his official duty was held insufficient to for the prosecution.
overcome the presumption of innocence, as it was
inconceivable that the accused would still sell shabu to EXCEPTION TO EXCEPTION: Exception to exception is
SP01 Alilio when the accused knew Alilio to be the police when he stipulates that whenever his name is called, it
officer who earlier arrested his friend, Ormos, for allegedly refers to the person who is accused in the case charged in
selling shabu. (People v. Briones, 266 SCRA 254) the information. If he admits that, then he need not be
present.
RIGHT TO BE INFORMED OF THE NATURE AND
3. DURING PROMULGATION OF JUDGMENT
CAUSE OF ACCUSATION AGAINST HIM
During the promulgation of judgment, does he need to be
ARRAIGNMENT IS CONDITION PRECEDENT TO THE present?
PROSECUTION
This is especially during the arraignment. Precisely REQUIREMENT OF NOTICE
arraignment is a condition precedent to the prosecution of For as long as he was duly notified, and he does not appear,
the accused. the promulgation of judgment must proceed.
The accused can never be tried ex parte, or in the absence IF ASK FOR POSTPNEMENET GRANT
of the accused without first the accused being arraigned. However, if he asks for postponement, that should be
No trial in absentia can proceed without the accused first granted because it is his right to be present during the
being arraigned. promulgation of his judgment, especially when he is
charged with a capital or a serious offense.
INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION LIGHT OFFENSE
When you say should be informed of the nature and If it is only light offense, he may be represented by his
cause of accusation against him it means he has to be counsel. If acquitted, he need not be present.
informed of the allegations in the information.
LESS GRAVE OR GRAVE OFFENSES
ALLEGATIONS IN THE INFORMATION PREVAILS If it is less grave or grave offenses, he must be present. If he
OVER TITLE cannot attend, or he does not attend, it doesnt mean that
What is controlling is not the title of the charge but the the promulgation is not valid.
allegations of the information.
B. RIGHT OF ASSITANCE OF COUNSEL
PROSECUTION LIMITED BY THE ALLEGATIONS In every stage that he is present, he must be assisted with
What is not alleged in the information, the accused cannot counsel.
be made to answer to any offense or any facts not alleged
in the information. Prosecution should not be allowed to 1. DURING ARRAIGNMENT
present evidence to prove a face that was not alleged in The presence of counsel during arraignment is mandatory.
the information because of the right of the accused to be
informed of the nature and the cause of the accusation COUNSEL DE OFFICIO
against him. If he cannot afford the services of counsel, he must inform
the court the moment he learns about that. It is the
So if the charge is for homicide, he cannot be convicted of obligation of the court to provide him a counsel de officio.
murder, even if the aggravating circumstance is established
and proved beyond reasonable doubt by the prosecution. If the court fails to do that, that would be a ground for
administrative sanction against the judge.
That is just simply because he has the right to be informed
of the nature and cause of accusation against him. IF SECURE OWN PRIVATE COUNSEL
But the moment he secures his private counsel or his own
RIGHT TO BE HEARD BY HIMSELF OR COUNSEL counsel, and the lawyer fails to appear during the trial,
does the court still have the obligation to provide the
A. RIGHT TO BE PRESENT AT EVERY STAGE OF accused with counsel de officio?
TRIAL No. not anymore.
This means he has the right to be present at every stage of
the trial of his case, from arraignment to the promulgation Although it is recognized that the right to counsel is an
of his judgment. That is his right. absolute right of the accused, however if the accused is
already been assisted with counsel before, the court has no
The Supreme Court said that a PAO lawyer is considered more obligation to provide him with a counsel de officio. In
an independent counsel within the contemplation of the effect, that lawyer would no longer appear during the trial
Constitution since he is not a special counsel, public or of his case.
private prosecutor, counsel of the police, or a municipal
Page 8 of 12
There is the discussion there as to the extent of counsel It is right also of the accused to a public trial. Trial open to
during criminal prosecution especially if the accused has his the public irrespective of the peoples relationship to the
own counsel. Meaning he got his own counsel to assist him accused.
and he is not a counsel de officio. (People vs Laraaga)
So accommodate this right of the accused as well as of the
2. DURING PROMULGATION OF JUDGMENT complainant of due process, thus the allowing of the
GENERAL RULE: During the promulgation of judgment, he broadcasting.
need not be assisted with counsel.
NOT SUBJECT TO PUBLIC OPINION
EXCEPTION: However for grave offenses, he must be However this does not mean that it is a trial that will be
assisted with counsel so that he will understand what subjected to public opinion. Thats why there are so many
actions to take, especially if it is a conviction. provisions for allowing the broadcasting of the trial of the
Ampatuan case.
3. DURING APPEAL
How about during the appeal? Is the right to counsel still LIMITATION IN AMPATUAN CASE
available? The only limitation of the Ampatuan case is that the only
Yes. In fact the justices of SC advice that the accused who evidence that would be adduced during the trial would be
cannot afford the right to counsel before the appellate offensive to public decency and public morals, in which case,
court, because the moment the appellate court is informed the accused may ask for the exclusion of the public.
about it, it is the duty of the appellate court to provide him
a counsel de officio to assist him in his appeal. Take note that this is a right of the accused.

RIGHT TO A SPEEDY, IMPARTIAL AND PUBLIC NOT EQUIVALENT TO PUBLICITY


TRIAL This is not equivalent to publicity. Publicity is prohibited.
Publicity amounts to placing the person under the scrutiny
A. SPEEDY NOT INCONSISTENT WITH of public opinion. And it might affect his right to due
POSTPONEMENT process because of the possibility of the court being
Speedy is not inconsistent with postponements. For as long influenced by the public or of the media.
as the postponement is not vexatious, capricious, and
unreasonable, it may be allowed by the court. So there was a good discussion that was recently decided in
Ampatuan. There is a good discussion with regards to
EFFECT IF CAPRICIOUS consistency of the right to consistency of the right to public
But the moment the delay is capricious on the part of the trial of the accused, whether there is violation of due
prosecution, then it may be dismissed. And the dismissal process.
based on the ground of violation of the accused right to a
speedy trial; it amounts to an acquittal and can be used as Apparently SC said, there is no violation for as long as the
basis to claim double jeopardy. conditions are complied with.

REMEDIES IF VIOLATED RIGHT TO FACE TO FACE CONFRONTATION OF


What would be the remedy of the accused if his right is THE WITNESSES OF THE PROSECUTION RIGHT TO
violated? CROSS EXAMINE
1.MOVE FOR DISMISSAL - He should move for the dismissal This is with respect to the right of the accused to cross
of the case. examination of the witnesses.
2.APPLY FOR WRIT OF HABEAS CORPUS - And if he is
detained, he can always apply for a writ of habeas corpus. GUARANTY ONLY OPPORTUNITY
Take note that this face to face confrontation is a right that
B. IMPARTIAL is availed of by the accused. And what is guaranteed is only
We have discussed about this when we were discussing due the opportunity.
process. The court must observe neutrality.
WHEN NOT AVAILABLE
C. PUBLIC 1. EXPRESS OR IMPLIED WAIVER
MUST BE CONTINUOUS In other words, you can waive this right. Example, if he
This is the reason why Ampatuan case, relating to the does not appear during the trial, then he may be denied of
broadcasting of the proceedings, however it has to be his right to a face to face confrontation in a trial in
continuous. No breaking it for the duration of the day, absentia.
should there be a broad cast. Apparently, no TV station
would want that because there will be no advertisements. 2. DYING DECLARATIONS
Another exception, dying declarations cannot be
NO COMMENTS confronted by the accused. Obviously because the persons
And there should not be any comments relating to it. Just who made the dying declarations are already dead.
as is.
3. EXAMINATION OF CHILD WITNESS
REASON WHY ALLOWED IN AMPATUAN Of course, you have the examination of a child witness.
The reason why public trial is allowed here, contrary to the There may not be a face to face confrontation. If there is
case of Estrada vs Disierto, is because they cannot any question by the accused to the witness, it will be
accommodate everybody in the court room which is so coursed through certain individuals in order to protect the
small. And there is also a question of security. And there are child.
too many victims in the case and too many members of the
family who would want to attend however they cant We have this audio-video taking of the testimony of the
because they are in Mindanao. They cannot afford to come child and if there is any question that would be asked, it
to Manila and witness the conduct of the hearing. would either be referred to the lawyer or the judge.

OPEN TRIAL IRRESPECTIVE OF RELATIONSHIP 4. THROUGH AFFIDAVIT OR DEPOSITIONS


You also have that exception where there was the witness
however is no longer qualified to testify maybe because he
Page 9 of 12
has become insane or maybe because he has gone abroad
already and his whereabouts are unknown, in which case it RIGHT OF ACCUSED AGAINST
has given an affidavit or deposition of his testimony. That SELF-INCRIMINATION
may be admitted in evidence even if the accused has not Article III, Section 17 provides:
confronted the witness on that statement given in an No person shall be compelled to be a witness against
affidavit or a deposition. himself.

RIGHT TO COMPULSORY PROCESS COVERAGE


This is for the asking of subpoena, either: 1.judicial
1.subpoena ad testificandum 2.quasi-judicial
2.subpoena duces tecum 3.administrative
4.legislative inquiries
1. SUBPOENA AD TESTIFICANDUM WHO AVAILS
SUBPOENA AD TESTIFICANDUM is when you compel a 1.accused
witness to appear in court and testify. 2.witness
WITNESS ON RIGHT AGAINST SELF INCRIMINATION STATUTES APPLICABLE
Can a witness invoke his right against self-incrimination? 1.Case of Miranda vs Arizona
GR: CANNOT INVOKE MUST TAKE STAND 2.5th Amendment of US

Can he refuse to take the witness stand? WHEN AVAILED


NO. 1. ACCUSED IN CRIMINAL CASE
If you are the accused, can you be compelled to testify
EXPT: against the co-accused?
1. ASKED SELF INCRIMINATING QUESTIONS NO. You can invoke this right the moment you are called
The right to self-incrimination can only be invoked when to a witness stand.
asked incriminating questions. He can be compelled to
take the witness stand. 2. RESPONDENT IN ADMINISTRATIVE CASE
But a respondent in an administrative proceedings, both
LIMITATION: cannot be compelled to take the witness stand. Because
However, take note of the limitation. When however he administrative proceedings is similar to criminal
lives or resides more than 15 km away from the court sits, proceedings.
he may not be compelled to testify.
EXPT: If convicted, he could lose his license or profession which is
Unless his testimony is relevant to the case and there is no his property.
other witness to testify.
3. WITNESS
2. SUBPOENA DUCES TECUM Insofar as the witness is concerned, when can he invoked?
When one is compelled to bring documents or other Only when he is asked the self-incriminating questions. In
evidences and testify thereon. other words, he cannot refuse to take the witness stand.

WITNESS ON RIGHT AGAINST SELF INCRIMINATION 4. PLAINTIFF IN CIVIL CASE


If they are self-incriminating, can he be compelled to take A plaintiff as a witness, can he be compelled to take the
the witness stand? witness stand?
GR: MUST TAKE STAND YES. When his testimony s relevant to the resolution of the
Yes. case.

EXPT: Like as hostile witness.


1. WHEN CONFRONTED WITH EVIDENCE
He can invoke right against self-incrimination only when he EXCPETIONS WHERE ACCUSED MAY TESTIFY
is confronted with evidence. AGAINST A COACCUSED
There are exceptions where accused may testify against a
GRANT OF IMMUNITY coaccused, even if it would incriminate him:
Otherwise, he may ask for the grant of immunity. There 1. If he is discharged as a state witness;
are two kinds of immunity hat he may ask: The moment he is discharged as a state witness, the case
a.use and fruit immunity with respect to him is already terminated. So there is no
b.transactional immunity danger of self-incrimination anymore. He is deemed
acquitted already.
On the USE AND FRUIT IMMUNITY, where the witness
may be compelled to testify or bring a self-incriminating 2. If the case with respect to him is already terminated;
evidence, and testify thereon, provided that the compelled The termination is either by his acquittal or conviction.
testimony or compelled evidence may not be used against
him. So he may be prosecuted, however evidence cannot 3. If separate proceedings have been conducted on the
be used against him. same case however arising from the same incident;
In some cases, the fiscals file the case as the accused have
On the TRANSACTIONAL IMMUNITY, there is been arrested. Those at large, they will not include.
practically an absolute immunity because the compelled
testimony or the compelled evidence cannot be used The moment they are arrested, they would file against
against him, neither can he be prosecuted in connection them after.
with this testimony and evidence.
ACTS PROTECTED THAT ARE SELF-INCRIMINATING
1. Giving of oral testimony
RIGHT TO SPEEDY DISPOSITION OF CASES 2. giving of answer or reply to queries
Article III, Section 16 provides: 3. Acts that are communicative in nature
All persons shall have the right to a speedy disposition of a.sample of hand writing
their cases before all judicial, quasi-judicial, or b.reenactment of the commission of the crime
administrative bodies. c.signing an inventory receipt
Page 10 of 12
d.signing of letter that is used against you No person shall be twice put in jeopardy of punishment for
e.signing of booking sheet without assistance of a counsel the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall
MECHANICAL COMMUNICATIVE ACTS constitute a bar to another prosecution for the same act.
Take note of communicative acts that are merely
mechanical and therefore even if it will incriminate the KINDS OF DOUBLE JEOPARDY
accused, it is admissible in evidence. There are two kinds of double jeopardy:
1.paraffin testing 1.One is twice put in jeopardy for the same offense
2.physical examination of the body 2.Act is punished by a law and an ordinance
3.DNA testing Conviction or acquittal under either shall constitute a bar
4.extraction of hair, saliva or fluids of body of accused to another prosecution of the same act.
These are admissible against the accused because there is
no use of intelligence and free will. (People vs Yatar) A. ONE IS TWICE PUT IN JEOPARDY FOR THE SAME
OFFENSE
EXTEND TO ADMINISTRATIVE INVESTIGATION
Does this extend to administrative investigation? ELEMENTS:
SC said yes because the investigation partakes the nature 1.There is the first jeopardy
or is analogous to criminal proceedings. 2.First jeopardy is terminated
3.There is the second jeopardy
SC said that the privilege has consistently been held to
extend to all proceedings sanctioned by law and all cases in 1. THERE IS THE FIRST JEOPARDY
which punishment is sought to be visited upon a witness
whether a party or not. (Standard Chartered Bank vs WHEN THERE IS FIRST JEOPARDY
Senate Committee) a.complaint is valid
b.court has jurisdiction over the case
NOT APPLY TO PUBLIC DOCUMENTS -tribunal or court is competent to hear and try the case
Does this apply to public documents? c.accused has been arraigned and entered into a valid plea
So if the complaint is invalid, the case is dismissed. When
Case: Almonte vs Vasquez the case is refiled, will there be double jeopardy?
NO. NO. Even if complaint is valid, however the court has no
jurisdiction over the case, case is dismissed.
Case: Savio
On public documents, even if it is incriminating, the public Then the case is filed in the proper court, will there be
officer can be compelled to produce them. double jeopardy?
NO.
AVAILIABLE ONLY TO NATURAL PERSONS
Can this be invoked by the juridical persons? When the case has been dismissed even before the
NO. This is only availed of by natural persons. Because arraignment of the accused, can there be a refiling of the
juridical persons are subject to police power of the state in case?
compliance with, for example: YES, because the accused has not been arraigned yet.
1.fiscal laws
2.sanitary laws Where the accused was arraigned and he pleaded not
3.taxation laws of the state guilty, however after he was allowed to present a
mitigating evidence, has proven justifying evidence and
RIGHT AGAINST CRUEL AND DEGRADING AND thereby resulting to his acquittal, can the judgment be
INHUMAN PUNISHMENT appealed?
Article III, Section 19 provides: YES. Because there was no valid plea entered. The plea of
(1) Excessive fines shall not be imposed, nor cruel, not guilty was deemed to withdrawn when the accused
degrading or inhuman punishment inflicted. Neither shall presented a justifying evidence that led to his acquittal. So
death penalty be imposed, unless, for compelling reasons it was as if no valid plea was entered.
involving heinous crimes, the Congress hereafter provides
for it. Any death penalty already imposed shall be reduced ON PLEA BARGAINING
to reclusion perpetua. When there is no valid plea bargaining?
(2) The employment of physical, psychological, or
degrading punishment against any prisoner or detainee or What are the requirements of a valid plea bargaining?
the use of substandard or inadequate penal facilities under a.with consent of complainant
subhuman conditions shall be dealt with by law. b.if the complainant does not appear, his absence is
unjustified despite notice
Take note that it is right against cruel and degrading and c.with consent of prosecutor
inhuman punishment, it is AND not or.
2. FIRST JEOPARDY IS TERMINATED
DEGRADING PUNISHMENT HOW TERMINATED
A penalty is degrading if it exposes the person to public a.acquittal
humiliation. So it must be severe as to be degrading to the b.conviction
dignity of the human beings. And it is applied arbitrarily to c.dismissal of the case without the consent of the accused
the person.
A. ACQUITTAL
PROHIBITED ACTS This is when the case is dismissed because the guilt of the
1.use of torture or lingering suffering accused has bit been proven beyond reasonable doubt. So
2.excessive fines even if the judgment of acquittal is erroneous, still that
cannot be appealed.
DEATH PENALTY
There is no more issue to that. EXCEPTION: MISTRIAL
RIGHT AGAINST DOUBLE JEOPARDY
Article III, Section 21 provides:
Page 11 of 12
Unless there is a mistrial, because there was no impartial 3. Lapse of 1 or 2 years after grant of PROVISIONAL
tribunal before the case. For as long as the acquittal is valid, DISMISSAL moved for by the accused;
there can never be a refilling of the case. However in cases where accused moved for the dismissal so
that means it is dismissed with the consent of the accused,
They got acquitted and thereafter it was appealed to SC usually the court would grant a provisional dismissal of the
and allowed the retrial of the case because according to SC, case.
their judgment of the court was void because considering
at that time, it was the Marcos administration, the courts If dismissed, would it constitute double jeopardy?
are being controlled by the president. So there were no NO. Except, if after the lapse of certain period of time,
impartial proceedings at the time. (Perman vs SB) there cannot be anymore reinstatement.

NO APPEAL AFTER ACQUITTAL EXAMPLE: Dismissal upon the initiative of the


Precisely because of double jeopardy, the prosecution accused. Theres a provisional dismissal because the
cannot appeal a valid judgment of acquittal. witnesses of the prosecution cannot be secured and the
fiscal moves for the dismissal of the case with the consent or
B. CONVICTION express conformity of the accused. What will
So when the accused is convicted, then that cannot be happen?
refilled anymore.
There will be no more double jeopardy until after 2 years
APPEAL ONLY BY ACCUSED DEEMED WAIVED where the offense charged is punishable by more than 6
years of imprisonment or one year if the penalty is 6 years
RIGHT
or less.
Can the fiscal appeal the judgment of conviction? Such as
the fiscal was not satisfied of the judgment rendered by the
After the lapse of 2 years and 1 year, double jeopardy will
court, can the prosecution appeal?
now set in. It cannot be anymore refiled.
NO. Unless the accused appeals the judgment of conviction.
It is then that the accused is considered to have waived his
Rule 117 of Rules of Court a provisional dismissal of the
right against double jeopardy.
case becomes definite after the lapse of one year for
offenses punishable by imprisonment of not exceeding 6
The moment the accused appeals the judgment of
years or a lapse of 2 years for offenses punishable by
conviction, now the prosecution can appeal the judgment.
Imprisonment by more than 6 years; there can be no
reinstatement anymore.
The penalty was only reclusion perpetua because Judge
Ocampo then refused to impose the death penalty. They
3. THERE IS THE SECOND JEOPARDY
appealed the decision and prosecution likewise appealed
When is there now a second jeopardy?
the judgment because for them it should have been death.
A second jeopardy would attach after the termination of
So when they appealed the decision to CA, it was increased
the second jeopardy if:
to death. And you cannot anymore complain about
1. The first offense is similar to the second offense. They are
double jeopardy because an appeal is considered to have
identical.
been a waiver of that right to invoke double jeopardy.
(People vs Larraaga)
How do you know that they are identical?
Because the evidence presented in the first offense is the
C. DISMISSAL OF THE CASE WITHOUT THE same as the evidence presented in the second offense.
CONSENT OF THE ACCUSED
2. When the first offense is just an attempt or frustration of
GENERAL RULE: NOT INITIATED BY THE ACCUSED the second offense or vice versa of the second offense;
When you say, dismissal of the case without the consent of 3. When the one offense is necessarily included in the other
the accused, dismissal must not be initiated by the accused. offense;
Because if the accused initiated the dismissal of the case by
filing a motion to dismiss, then the accused is deemed to EXPT: RULE OF SUPERVENING EVENT
have waived his right to invoke double jeopardy. So for example in the case of serious physical injuries that
developed into the death of the victim, and thus a
EXCEPTION: WHEN DISMISSAL MAY BE INITIATED BY homicide case is filed, that would not constitute as double
ACCUSED BUT WILL STILL AMOUNT TO DOUBLE jeopardy, even if it was filed after the termination of first
JEOPARDY jeopardy because of the rule of supervening event.
Except of the following instances:
1. When the motion to dismiss is grounded on the right to
SHOULD HAPPEN AFTER TERMINATION OF FIRST
speedy trial;
It is the accused who files the motion to dismiss. If it is JEOPARDY
granted, it is a dismissal without the consent of the accused. The supervening event should happen after the
termination of the first jeopardy.
It is tantamount to the acquittal and there cannot be
reinstatement or refilling of the case for it will now EXCEPTION: NO KNOWLEDGE UNTIL
constitute double jeopardy. TERMINATION
Unless the prosecution or the prosecutor did not know of
2. When the accused files a demurer to evidence; the development until after the termination of the first
When the accused files a demurer to evidence, this is jeopardy.
actually a motion to dismiss, after the prosecution has
rested its case, on the ground that the evidence of IF HAPPEN DURING PENDENCY OF FIRST
prosecution is insufficient to prove the guilt of the accused JEOPARDY
beyond reasonable ground and the case is dismissed. Because if it is known to the prosecutor during the
pendency of the first jeopardy, what should have been
The dismissal is tantamount to the acquittal. And therefore, done?
the refilling of the case or appeal of the judgment of The prosecutor should have amended the information to
dismissal is tantamount to double jeopardy. charge the accused of the appropriate offense. Otherwise,
his failure to do that will preclude him in the future to file a
case that developed into a more serious event.
Page 12 of 12
2.Punishment and penalty
A. ACT IS PUNISHED BY A LAW AND AN Anything that will be to the disadvantage to the accused
ORDINANCE and applied retroactively, then definitely, that is an ex post
Conviction or acquittal by either would bar the facto law, prohibited by law.
prosecution.
Example: Jaywalking is punishable by law or ordinance. If On the expansion of the jurisdiction of Sandiganbayan
one is already convicted for violating the law, he cannot be under RA 8249; according to SC, it is not a penal law but a
anymore be punished for violating the ordinance punishing substantive law on jurisdiction, whose retroactive
the same act. application is constitutional. (Lacson vs Executive
Secretary)
TERMINATION OF FIRST JEOPARDY
A law can never be considered ex post facto law as long as
CONVICTION AND ACQUITTAL it operates prospectively because restriction would cover
The termination of the first jeopardy is only through only offenses committed after and not before its enactment.
conviction or acquittal only. Not dismissal without the (Villar vs People)
consent of the accused.
APPLY TO COURT DOCTRINES
DISMISSAL DUE TO INSUFFICIENCY OF EVIDENCE The prohibition of ex post facto law and law of attainder
applies to court doctrines pursuant to the maxim that
AND SPEEDY TRIAL
interpretation based upon the written law by a competent
This however on the failure to prosecute on the part of the
court has the force of law.
prosecution on the right to speedy trail and insufficiency of
the evidence where there is dismissal of the case, that is
tantamount to acquittal. USE OF UNLICENSE FIREARM AS A QIALIFYING
CIRCUMSTANCE NO RETROACTOIVE
So the same grounds can be used by the accused to move APPLICATION
for the dismissal of the case. And there would be a Can you apply retroactively the law making use of an
termination of the first jeopardy there because the grounds unlicensed firearm as a qualifying circumstance in murder
cited by the accused in the motion to dismiss for violation case?
either of an ordinance or law are amounting to an
acquittal of the accused. Instead of having separate offenses, it will just be a
qualified circumstance; you can apply that to cases that
EX POST FACTO LAW have been filed prior after the jurisprudence had been
Article III, Section 22 provides: established. But it cannot be applied retroactively. Because
No ex post facto law or bill of attainder shall be enacted. it will now constitute an ex post facto law. (People vs
Patok)
A. EX POST FACTO LAW
- It is prohibited. USE OF DNA NOT AN EX POST FACTO LAW
- It refers to criminal matters that are applied retroactively In the use of DNA test and applied retroactively, SC said
to the disadvantage of the accused. that it is not considered an ex post facto law.

KINDS B. BILL OF ATTAINDER


1.A law that makes an act or omission a crime when It is a legislative act which imposes a penalty or punishment
committed was not yet punishable by law without judicial trial.
2.It was punishable by law but aggravates the offense by
increasing the penalty If it is less than death, it is BILL OF PAINS AND PENALTIES.
3.Accused is deprived of certain protection relating to the If it is death, it is BILL OF ATTAINDER.
prosecution of his case.
Like changing the rules of evidence relating to proving his CHARACTERISTICS
innocence or guilt. Like instead of proof of guilt beyond 1. There is a law;
reasonable doubt, it is reduced to just prima facie evidence. 2. Law imposes a penal or criminal burden on individual or
Or like instead of presumption of innocence, there is ascertainable members of a group;
presumption of guilt. Burden must be criminal in nature. Like a fine or
imprisonment for doing an act which is punishable by law.
APPLIED RETROACTIVELY 3. It is imposed directly the law without judicial trial;
If it is applied retroactively, then there is an ex post facto It is in the law itself. There is no need for hearing. Like
law. depriving for example a person of a privilege or a right in
the law itself.
There cannot be any problem if it is applied prospectively
even if it is for the disadvantage of accused.

INCREASE OF PERIOD OF PRESCRIPTION


Increasing the period of prescription in the prosecution of
an action applied retroactively is at the disadvantage of
the accused. It cannot be allowed because it would be an
ex post facto law.

PROCEDURAL MATTER NOT EX POST FACTO


However if it is basically a procedural matter like on
jurisdiction for instance, then that may not be considered
an ex post facto law.

ONLY REFER TO CRIMINAL MATTER


The thing that you must always remember is that the law
must refer to a criminal matter. It involves the:
1.Definition of the crime