Revised MAN UAL PROSECUTORSDepartment of Justice, Manila, Philippines with funding al Development through its Rule of Law Effectiveness fam, Technical Published by the National Prosecution Service, support from the United States Agency for Internation: Project, The Asia Foundation, Millenium Challeage Account ~ Philippines Threshold Progr ‘Assistance Project and the Asian Development Bank. Copyright © 2008 by DOJ-NPS. All rights reserved. ISBN 978-971-61-153-6 Revised Manual for ProsecutorsCONTENTS FOREWORD... ACKNOWLEDGMENT PART I: PROSECUTION OF OFFENSES. L. GENERAL PRINCIPLE IL DEFINITION OF TERMS I. GENERAL RULES... A. COMPLAINT ss 1. Form of the Complaint Filed Before the Prosecutor's Office... 26 2. Policy on Forms of Complaint Filed With the Prosecutor's Office... 26 3. Persons Authorized to File Complaint 4, Law Enforcement Officers/Public Officers Authorized to File Criminal Complaints... 5. Institution of Criminal Action; How and Where Commenced... 30 6. Place Where Criminal Action is to be Instituted.. : 7. Who Prosecutes Criminal Actions B. INFORMATION. os 1, The Information Need Not be Under Oath; Matter Which a Prosecutor Must Certify Under Oath in the Information... 32 2. Contents of the Caption of an Information .......0 . C. RULES COMMON TO BOTH A COMPLAINT AND AN INFORMATION. reneneneose 1. Safficiency of a Complaint or an Information .. 32 a. the name of the accused... 32 » the designation of the offenses committed. 233 Examples of Conclusions of Law .. 33 Examples of Averments of Ultimate Facts. Ila c. the cause of the accusation. 4G, place where the offense was committed... ¢, date of the commission of the offense £. name of the offended party 2. Other Essential Matters to be Alleged in the ‘Complaint or Information ..... : 3, Number of Offenses Charged Revised Manual for Prosecutors4. Title of the Complaint or Information. 5. Qualifying and Generic Agaravating Cizcumstances; To be Alleged and Proved : 6, List of Prosecution Witnesses........ + Amendatent ofthe Complaint or Information 2. before the accused pleads b. after the accused pleads. . during the trial. 8, Amendment by Substitutio fs a. Requisites for the substitution of a defective information with the correct one. : 49, Presuriptive Period; How Computed and interrupted. 1. for an offense penalized under the Revised Penal Code.. b, for violation of a special law or ordinance .. ¢. for cases falling within the jurisdiction of the Katerangan Pambarangay ves aia IV. RELEVANT JURISPRUDENCE... PART H: INQUEST... I. GENERAL RULES. A. Concept .. B. Coverage... z ©. Designation ofan inquest Prosecutor 7 44 see D. Venue of Inquest Cases eae ©. Date end Time of the Conduct of Inquest Proceedings vurovoonne 45 1, PROCEDURE..... A. COMMENCEMENT OF THE INQUEST PROCEEDINGS ...... 45 1. When Commenced... 7 45 2 Doouiments Required in Specific Cases 45 3, Incomplete Documents .... serene 48 4 Instances Where the Presence ofthe Detained Person is Dispensed With 4B 5. Charges and Counter-charges F 48 & Dethaination ofthe Amest by the Inquest Prosecutor Meaning of Probable Cause in Inquest Cases. soon 4B 7, Where Arrest of the Detained Person ‘Was Not Properly Effected.. seven AD Whe the Arrest of tae Detained Person Was Propet Effected 30 4 Revised Manual for ProsecutorsB. INQUEST PROPER. 1, Contents of the Information 51 2. Action to be Taken When There is an Absence of Probable Cause... eeu 51 3. Action to be Taken When the Arrested Person Executes Waiver of Article 125 of the Revised Penal Code.. wn 52 4, Posting of Bail by the Amested/Detained Person, sone 52, a. If offense is bailable... atest eltcalat ttt 2 b. If offense is non-bailable 5. Termination of Inquest Proceedings II. OTHER MATTER! A. Presence of the Inquest Prosecutor at the Crime Scene ... B, Sandiganbayan Cases... C. Absence or Unavailability of the Inquest Prosecutor D. Recovered Articles... 1. Responsibility of the Inquest Prosecutor... 2, Deposit of Recovered Ariictes/Properties, E, Release of Recovered Articles .. IV. RELEVANT JURISPRUDENCE... V. HELPFUL HINTS. TEMPLATES OF INQUEST FORMS .. NPS Investigation Form No. 01, s. 2008 - Investigation Data Form... 60 NPS INQ Form No. 01, s. 2008 - Order to Submnit Additional Evidence/ Documents 0 62 NPS INQ Form No. 02, s. 2008 - Release Order of Detained/Arrested Person - 64 NPS INQ Form No. 03, s. 2008 - Subpoena to Respondents 66 NPS INQ Form No. 04, s. 2008 - Request for Preliminary Investigation and Waiver of Article 125, Revised Penal Code ..nsurssenn ee 67 NPS INQ Form No. 05, s. 2008 - Certification eseeennnnsee OB NPS INQ Form No. 06, s. 2008 - Release Order of Recovered Articles... NPS INQ Form No. 07, s. 2008 - Request for Release with Undertaking att nm FLOWCHART OF THE INQUEST PROCEEDINGS, Revised Manual for ProsecutorsPART IIL: SUMMARY INVESTIGATION L. GENERAL RULES. ‘A. Concepts and Principles... B. Coverage ...... IL PROCEDURE... PART IV: PRELIMINARY INVESTIGATION. 1. GENERAL RULES. ‘A. Concepts and Principles .. BNoture of a Preliminary Investigation 1. It is an Executive Function 2. This Preliminary in Nature... 3, It is a Summary and Inquisitorial Proceeding. 4, Itis a Judicial Inquiry or Proceeding C. Right to a Preliminary Investigation 1 Ieis Nota Constintional Right. 2. Itis Merely a Statutory Grant... 3. It is a Personal Right... 4, It is a Substantive Right..... D. Coverage .. E. Quantum of Evidence Required .. 1. “Probable Cause” Defined. No Fixed Formula for Determining Probable Cause... 3, Sound Discretion of the Prosecutor. F. Purposes of the Conduct of a Preliminary Investigation.. G. Officers Authorized to Conduct Preliminary Investigations Il, PROCEDURE ‘A, Commencement of the Preliminary Investigation a. Contents of the Complaint .. 'b. Number of Copies of Affidavits; Other Requirements 8B. Initial Action by the Investigating Prosecutor on the Complaint Filed ... . Service of the Subpoersa Together with the Complaint and Supporting Affidavits and Other Documents to the Respondents... 86 1. To Prevent Loss of Documents : : 86 2. Service to a Respondent Residing in a Distant Place . 87 Revised Manual for Prosecutors5. Written Approval Required in the Dismissal of a Complaint or the Filing of an Information in Court. Pletal 99 K, Transmittal of the Recommendatory Resolution and Information Together with the Complete Record of the Case . 1. Preparation of the Information and its Contents 99 99 a. lack of a certification... 100 designation of offense aot binding upon the court, 100 2, Recommended Bail; How Written... . 101 3. Documents to be Attached to the Information 101 101 4, Confidentiality of Resolutions... L. Action of the Chief State/Regional Staterovineal City Prosecutor on the Recommendatory Resolution... sasrsnenseneenennes 10D M, Re-opening of the Preliminary Investigation .. 102 N. Promulgation of the Resolution; Modes of Service 102 . Filing of the Information in Court; Rules to Follow.. 103 P, Action on a Motion for Reconsideration... 103 Q. Action on a Reinvestigation.. 103 1. Instances Where a Reinvestigation May be Conducted. 104 2. pursuant to a court order for cases already filed in court...... 104 . pursuant to an order or directive from the Regional State Prosecutor or the Secretary of Justice ...... 104 LL, RELEVANT JURISPRUDENCE ween 105 TEMPLATES & SAMPLE FORMATS USED IN THE CONDUCT OF THE PRELIMINARY INVESTIGATIONS .. NPS INV Form No, 01, s. 2008 - Investigation Data Form ........ 108 NPS INV Form No. 02, s. 2008 - Resolution Dismissing the Complaint... 10 NPS INV Form No. 03, 5. 2008 - Subpoena to Complainant... 112 NPS INV Form No. 04, s. 2008 - Subpoena to Respondent/s...... 113 NPS INV Form No, 05, s. 2008 - Subpoena to Respondent to Obtain Copies of the Complaint and Other Supporting Evidence... n4 NPS INV Form No. 06, s, 2008 - Order Suspending the Preliminary Investigation Proceeding Due to a Prejudicial Question... us NPS INV Form No. 07, s. 2008 - Subpoena for Clarificatory Hearing eves 6 NPS INV Form No. 08, s. 2008 - Order of Consolidation MNT NPS INV Form No. 09, s. 2008 - Regional Order Designating « 118, Prosecutor to Conduct the Preliminary Investigation . 8 Revised Manual for Prosecutors3, Where Respondent Cannot be Subpoenaed or if Subpoenaed Does not Submit Counter-A ffidavit ... ee wees BT 4, Objects as Evidence 5, Guidelines to be Observed in the Service of Subpoena D. Submission of the Counter-affidavits by the Respondent/s 8B 1. Extension of Time Within Which to Submit Respondent’s Counter-Afidavit... 2. Filing of a Motion to Dismiss, Memorandum or Motion in Lieu of a Counter-Affidavit..... a, General RUC nooner B. Exceptions wrneine 3. Effect of the Filing ofa ‘Motion to Dismiss o ora Motion fora Bill of Particulars and Other Similar Pleadings ....... oe 90 4, Action on Motions to Dismiss on the Basis of an Affidavit of Desistance.... nsnsesees 90 5. Suspension of Proceedings Due to the Existence of Prejudicial Question ie a. Concept of a Prejudicial Question atte tatal b, Elements of a Prejudicial Question «uu ¢. Issuance of an Order Suspending the Proceedings Due to the Existence of a Prejudicial Question; Written Approval of the Head of Office Required. aaa E. When to Set Case for Clarificatory Questioning... 1, No Right to Examine or Cross-Examine 2, Records/Notes During the Clarificatory Hearing......... 3. No Right to Counsel... E Reply-Atfidavits, Rejoinders and Memoranda; When to Allow the Filing Thereof. : G. When Complaints May be Consolidated. ‘H. Actions on Motions to Disqualify/Inhibit I, Submission of the Case for Resolution J. Preparation of the Resolution .. 1. When There is Lack of Probable ‘Cause tensan 2. When There is a Finding of Probable Cause. 3. Form of the Resolution and Number of Copies a, Caption of Resolution b. Names of Pattes.. c. Case Number... zo: 4. Designation of Offense/s Charged... c. Contents of the Body of the Resolution... f. Parts of a Resolution .. fe &. Parties Who Need to be Furnished ‘a Copy of the Resolution... 98 hh. Signatures and Initials of Investigating Prosecutor ...... 98 4, Period to Conduct the Preliminary Investigation ......scunennnn 99 Revised Manual for Prosecutors119 123 125 Sample Resolution... Sample Information 1 Sample Information 2 Sample Information 3 .. ee 127 Sample Information 4 129 NPS SAMPLE FORMAT “A”, s, 2008 - Order for the Submission of Memoranda soe BI NPS SAMPLE FORMAT “B?, s, 2008 - Certification . 133 FLOWCHART OF THE PRELIMINARY INVESTIGATION PROCESS Flowchart |... 7 ae meee 134 Flowchart 2... : 135 Plowchart 3... 136 BT PART V: ARRAIGNMENT AND PLE, I. GENERAL RULE! A. Principles. B. Coneepts Il, PROCEDURE. A. Duties of the Trial Prosecutor ... 1. Before the Arraignment of the. "Accused. 137 2, During the Amaignment sevens 1BB 3. After the Arraignment.. 138 B. Effect of the Filing of a Petition for Review ......... ws vo 138, C. Applicable Rules in Cases Where the Accused Pleads, Gait toa Lesser Offense alata D. When a Plea of Guilty to a Lesser Offense Not. ‘Allowed . 139 E. When Accused Pleads Guilty to a Capital Offense ............. seeveee 139 II. RELEVANT JURISPRUDENCE PART VI: PRE-TRIAL. L. CONCEPT eases I, SUBJECT MATTERS OF A PRE-TRIAL CONFERENCE A. Plea Bargaining. 140 B. Stipulation of Facts. 140 C. Marking for Identification of Evidence of the Parties. 11 Revised Manual for ProsecutorsD. Waiver of Objections to the Admissibility of Evidence, seen 14] E, Modification of the Order of Trial... 141 F. Such Other Matters 141 II. NON-APPEARANCE AT THE PRE-TRIAL CONFERENCE wm 141 IV. DUTIES OF THE PROSECUTOR AT THE, PRE-TRIAL CONFERENCE. 141 A. Before the Pre-trial Conference .....0 B. During the Pre-trial Conference C. After the Pre-trial Conference... 142 142 V. RELEVANT JURISPRUDENCE. xen PART Vil: BAIL... 4, CONCEPTS A. Purpose of Bail... B. Nature of the Right to Bail... C. Basis of Bail . D. When Bail Not Required. Il, DUTIES OF THE PROSECUTOR... ‘A. When Bail is a Matter of Right B, When Bail is a Matter of Discretion C. Right to Notice, Mandatory. Right to Bail in Inquest Cases..... Guidelines in Recommending Bail. Criteria in Recommending the Amount of Bail... Rules in Computing the Bail to be Recommended... Hearing on Petition for Bail in Non-bailable Offenses: Exception to the Rule on Non-bailable Offenses weno Right ofthe Prosecution to Present all Evidence During the | Bail Hearing K. Bifect of a Denial of the Opportunity to Present Evidence for Purposes of the Petition for Bail... i Sr momo 149 149 L. Petition for Bail in Continuous Trial M, Cancellation of the Bail Bond 150 10. OTHER MATTERS. no 150 A. Release on Recognizance; Guidelines 150 B. Requirements for the Grant of recognizance Under R. A. No, 6036... ..150 10 Revised Manual for ProsecutorsIV, RELEVANT JURISPRUDENCE «con Part VIII: ARREST... I. Remedy of the Prosecutor When no Warrant of Arrest was Issued by the Judge... Ii. Request for a copy of the Return. TH. Relevant Jurisprudence 1 152 PART IX: TRIAL. 1. GENERAL RULE! A, Concept... B, Coverage... M1. TRIAL PREPARATION... A. Preparation of the Trial Brief... B. Order of Presentation of Witnesses. C. Offer of Exhibits, a D. Defense Evidence... E, Discharge of Accused fo be State Witness. F. Admission to the Witness Protection Program of an Accused. ‘Who Has Been Discharged G. Other Persons Who May Avail of the Witness Protection Program H. Motions for Postponement by the Accused. 1. Discontinuance of Proceedings . J. Presentation of Evidence IIL. PROCEDURE.. A. Continuous Trial until Terminated .. B, Order of Trial. C. Presentation of Witnesses... D. Conditional Examination of Witnes forthe Prosecution. E. Cross-Examination of the defense Witness... F Rebuttal Evidence G. Request for Subpoena .... 7 HL. Custody of Physical and Real Evidence Pending Trial IV, RELEVANT JURISPRUDENCE... Revised Manual for Prosecutors uPART X: APPEAL/PETITION FOR REVIEW .. 1. GENERAL RULES. ‘A. What May be Appealed. B. Venue for the Filing of the Appeal/Petition ‘for Review... C. Period to File the Appeal/Petition for Review .. D. Form and Contents... E, Documentary ‘Attachments . F Effect of Failure to Comply with the Requirements G. When an Information has Been Filed in Court... H. When Accused/Appellant is Arraigned During the Pendency of the Appeal/ Petition for Review L Appellee’s Comment....nnnsneinnnnenn J. Summary Action EB K. Withdrawal of the Appeal/Petition for Review L. Motion for Reinvestigation Pending Appeal... 7 1, When an Information Has Not Yet Been Filed in Coutt.. 2. When an Information Has Been Filed in Court M. Disposition of the Appeal/Petition for Review. N. Motion for Reconsideration ©. Effect of Filing the Appeal/Pctition for Review .. II, RELEVANT JURISPRUDENCE. PART XI: MISCELLANEOUS MATTERS.. 1. HOLD DEPARTURE ORDERS AGAINST ACCUSED PERSONS. Il, CANCELLATION OF TRAVEL DOCUMENT! If. HANDLING OF CRIMINAL COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES .. IV. NOTIFICATION OF PROSECUTOR OF THE FILING OF AN APPLICATION FOR PROBATION. A. Comment on the Application for Probation .. 169 B. Release of Applicant for Probation a 170 C. Objection to the Grant of Probation. soe 170 17 D. Hearing for Revocation of Probation. 71 in V. PROCEDURE IN CASES INVOLVING CHILDREN... A. Inquest Proceedings R Revised Manval for Prosecutors1. If the Child is the Complainant................. hate atalol aR 2. Ifthe Child is the Suspect ... im 3. Guidelines in the Conduct of all Inquest Proceedings Involving a Child... B. Preliminary Investigations... 1. Ifthe Child is the Victim... 2. If the Child is the Respondent. C. Protective Custody of the Child D, Termination of Inquest/Preliminary Investigation 173 174 174 we VTS 11S 175 VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN PERSONS AND VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ....176 A. Preliminary Investigation. 176 B Evidence Gathered/Built-tp by the Law Enforcer, Need to Check... 177 C. Prosecution Guidelines... : 178 ‘VI. PROCEDURE FOR THE FILING OF A PETITION FOR CERTIORARI THROUGH THE OFFICE OF THE CHIEF STATE PROSECUTOR. A. When to File Petition for Certiorari B. Coverage. A C. Period to File the Petition 7 D. Action to be Taken by the Trial Prosecutor. E. Action of the Chief State Prosecutor......... VIM. HANDLING OF ENVIRONMENTAL CASES.. A. REVISED FORESTRY CODE (PD 705) 1. Evidence Required. 2. Pointers... B, TOXIC SUBSTANCES AND HAZARDOUS WASTE ACT (R.A. No. 6969) . 1. Evidence Required. C. PEOPLE’S SMALL SCALE MINING ACT (R.A. No. 7076). 1. Evidence Required... a PHILIPPINE MINING ACT (R. A. No. 7942} 1. Evidence Required... 2, POIMtETS serenenee E, CLEAN AIR ACT (R. A. No. dae) 1. Pointer. Rovised Manual for Prosecutors 1BF. ECOLOGICAL SOLID WASTE MANAGEMENT ACT RA DNAS) 1. Pointer... ciate essen G. WILDLIFE CONSERVATION AND PROTECTION ACT (RANo. 9147) 1. Evidence Required. ‘B. CHAINSAW ACT (R. A. No. 9175) 1. Evidence Required... I, CLEAN WATER ACT (R. A. No. 9275). 1. Evidence Requited con 2. Pointer... ven IX. PROSECUTION OF MONEY LAUNDERING CASES.. A. General Rules... B. Duties of the Prosecutor... SPECIAL SECTION ON PROSECUTING HUMAN RIGHTS VIOLATIONS AND PROVIDING AVAILABLE REMEDIES THEREFOR........ 191 1. IN GENERAL... 192 192 192 A. Structure... B. Summative Checklist I. PROSECUTING CASES OF TORTURE .198 A. Background... 198 Definition . seers 198 B, Dealing With Torture Under Substantive Law sos... seve 199 199 1. Unconstitutionality 2. Dizect Criminal Prosecution for Maltreatment of Prisoners (Article 235, Revised Penal Code)... sennmnnnneseesns 199 3. Separate and Simultaneous Criminal Actions... 200 4, Prosecution Under the Human Security Act (R. A. No.9372)....206 5. Resort to Generic Remedies for Human Rights Violations ...... 206 C. Dealing With Torture Under Procedural Law... sores 207 1, Inadmissibility in Evidence Under the Constitution. 207 2. Detection of Torture at the Inquest Stag 207 3. Treatment of Torture at the Trial Stage. 208 If. PROSECUTING CASES OF ENFORCED DISAPPEARANCE... 209 A, Background ...cconsnsusenmnsesnnmnninnnnnee 209 14 Revised Manual for ProsecutorsB. Remedies Available Under Ordinary Actions. 210 1. Availment of Generic Remedies for Human Rights Violations .. 210 2. Criminal Actions......... savannves 210 Remedies Available for Information Gathering . 1. Rationale 2. Right to Information; extent thereof... 3. Right to Information; Limitations Thereto.... 4, Availing of the Rule on the Writ of Habeas Data (A.M, No. 08-1-16-SC, January 22, 2008} srsensssee DUA D. Remedies Available for Compelling Official Action or Response... 218 1. Rationale... 218 2. Availing of the Rule on the Writ of Habeas Conus (Rules of Court, Rule 102)... : 2219 3, Availing of the Rule on the Writ of Amparo 222 (A.M, No, 07-9-12-SC, October 24, 2007) 227 IV. PROSECUTING CASES OF EXTRALEGAL KILLING. A. Background... : : 227 B. Availing of the Writ of Amparo as a Protective Measure... 228 C. Remedies Available for Information Gathering .. 229 D. Availment of Genetic Remedies for Human Rights Violations ...... 229 E, Prosecution under the Human Security Act... seein, 230 F, Criminal Actions... 230 V. PROSECUTING CASES OF INVOLUNTARY DISPLACEMENT... 231 A. Background 231 B. Guidelines in the Delimitation of the Right of Abode and Right to Freedom of Movement... : 232 C. Remedies Available for Violation. 232 1. Action for Damages Under the Generic Remedies for Human Rights Violations eceemene 232 2. Criminal Action for Expulsion (Art. 127, Revised Penal Code)....233 3, Criminal Action for Grave Coercion (Art. 286, Revised Penal Code)...... = 20233 ‘VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS... 233 A. Present Context orn everne 233; B. Action for Damages under the Civil Code (Article 32) . 234 1, Nature and Quantum of Evidence Required 234 2. By Whom Filed... absatateh des 234 3. Against Whom Filed..... oe 234 4. Grounds to.be Alleged (Blements of Cause of Action). 234 5. Relief That May be Granted. seve 235 Revised Manual for Prosecutors 15C. Filing a Claim Before the Boards of Claims of the Department of Justice under the Victim Compensation Act (R. A. No. 7309) ven 236 L. Legal Basis... : By Whom File Procedure for Filing Claims ......c.00n Procedure for Processing of Claims Time Period : Relief That May be Granted. SPECIAL SECTION ON PROSECUTING VIOLATIONS OF THE NATIONAL INTERNAL REVENUE CODE (NIRC) & RELATED LAW! 239 240 I. POINTERS IN THE PROSECUTION OF TAX CASES.. 241 241 I. INSTITUTION OF CRIMINAL CASES. A, Prosecution of Criminal Actions... B. Bail... 241 C, Pre-trial. 241 Il. COMMON TAX OFFENSES (UNDER THE NIRC) 241 A. See, 254, Attempt to Evade or Defeat Tax. 241 1. Elements of See. 254, 241 2. Tax Evasion Connotes the Integration of Three Factors. 242 3, Documentary Evidence Required .... 242 B. Sec. 255, Failure to File return, Supply Correct and Accurate Information, Pay Tax Withheld and Remit Tax and Refund Excess Taxes Withheld on Compensation.. 244 1, Elements of Sec. 255.. 244 2. Documentary Evidence Required 1244 3. Expenditure Method/Net Worth Method 245 4, Revised Penal Code Provision on Malversation to Failure to Remi ns 245, 5. Att, 222 - Officers Included, 246 C. Sec. 257 (B)(8) - Knowingly Use Fake Certificate Authorizing Registration 246 1. Elements of Sec. 257 (B)(8).. 27 2. Documentary Evidence Required 247 3. Revised Penal Code Provision on falsification in Relation to Sev. 257(b)(8) of the NIRC... D. Sec. 258. Unlawful Pursuit of Business.. 1. Elements of Sec. 258... shliela 2. Documentary Evidence Required... 16 Revised Manual for ProsecutorsE, Sec. 267, Declaration Under Penalties of Perjury. 1. Elements of Sec. 267. 2. Documentary Evidence Required F, See. 236(0), last par. - Securing More Than One TIN, 1, Blements of Sec. 236()) son be 2, Documentary Evidence Required. IV. RELEVANT JURISPRUDENCE IN ESTABLISHING INTENT AND WILLFULNESS IN TAX CASES 252 A. Intent/Willfulness in Criminal Law. B. Philippine Jurisprudence on Intent/Willfalness in Tax Cases..... 253 253 1. Supreme Court Decisions... 2. Court of Tax Appeals Decisions. 3. Regional Trial Court (RTC) Decisions C. Challenges in Proving Intent and Willfulness in Tax Cases... D. Proof of Willfulness in U. 8. Jurisprudence 1. Proof of Willfulness — Failure to File Returns... 2. Proof of Willfulness ~ Attempt to Evade or Defeat Tax V. TEMPLATES OF TRIAL BRIEFS. A. See. 254. Attempt to Evade or Defeat Tax... wn 267 B. See. 256. Failure to File Retum, Supply Comect and Accurate Information, Pay Tax Withheld and Remit Tax and Refund Excess ‘Taxes Withheld on Compensatior C. See. 257 (B)(8) - Knowingly Use Fake Certificate Authorizing Registration. 276 D. See. 258, Unlawful Pursuit of Business 281 E. See. 267. Declaration Under Penalties of Pesjuty +285 289 F, See. 236(0). Securing More Than One TIN ... SAMPLE FORMATS 0m NPS Sample Format No. C - Motion for the Issuance of a Hold-Departure Order). NPS Sample Format No, D-1 - Memorandum forthe Secretary of Justice through the Chief State/Regional State/Provincial/City Prosecutor forthe Cancellation of Passport/Travel Document of an Accused Who Jumped Bail and Has Fled the Country)... 296 NPS Sample Format No, D-2 - Letter to the Secretary of Foreign Affairs for the Cancellation of Passport/Travel Document of an Accused Who Jumped Bail and has Fled the Country)... 297 294 Revised Manual for Prosecutors ”APPENDICES Appendix “A” - D.O, No, 39, s. 2007 - Rules on Inquest with Respect to Children in Conflict with the Law as Defined Under RA 9344 Otherwise Known as the “Juvenile Justice and Welfare Act of 2006”... 300 Appendix “B” - D.C, No. 46, s. 2003 - Automatic Review of Dismissed Cases Involving RA 9165 (Comprehensive Dangerous Drugs Act of 2002). 303 Appendix “C” - D.O. No. 318, s. 1991 - Defining the Authority, Duties 304 and Responsibilities of Regional State Prosecutors... Appendix “D” - D.O. No. 54, s. 1992 - Amending D.O. No. 318, s. 1991 by Specifying the Instances Where a Regional State Prosecutor can Designate an Acting City or Provincial Prosceutor to Handle the Investigation/Prosecution of a Particular Case ...rmenesseenon 308 Appendix “E” ~ D.C, No. 50, s. 2000 (Specifying Aggravating and Qualifying Circumstances in all Informations oz Complaints Filed In Court) 309 Appendix “F® - D.C. No. 47, s. 2000 (Preparation of a Trial Guide)... 311 Appendix “G” - D.C. No. 26, s. 2008 (Jurisdiction to Conduct Preliminary Investigation of Cases Against Public Officers/Employees) «0m 313 Appendix “HI” - Guide for Media Practitioners on the Reporting and Coverage of Cases Involving Children... 316 Appendix “1” - Participants of the Validation Sessions.....e..:0ssu» 324 18 Revised Manual for ProsecutorsFOREWORD ‘twas in 1996 that the first Manual for Prosecutors of the Department of Justice was issued as a unified guide for prosecutors in their day-to-day services to the public. In the ensuing years, the Rules on Criminal Procedure had undergone revisions, several special laws were enacted, and various jurisprudence emerged, thus, affecting the work of the prosecutors. Yet, the Manual remained as it was in 1996, The need to revisit the Manual to keep it attuned to recent developments in law and procedure is the prime consideration for those involved in this project. This Manual will provide for the procedural guidelines that will standardize in- vestigative and prosecutorial work in the National Prosecution Service in a unified and simplified manner, 1 thank all those who have labored and partnered with the Department for the de- velopment and production of this Manual. May you continue with such noble work for the Filipino people, and may more join you in efforts to strengthen the Department as an institution and the justice system as a whole. To all DOJ prosecutors and prosecution attomeys, this is your Manual. A lot of hard work, time and resources went into it to make sure that itis comprehensive enough to cover the peculiarities of your work, while being a user-friendly reference to you. It is my hope that this would help you in the discharge of your sworn duty to the people and ultimately improve the administration of justice in our country. ie f GONZALEZ Secretary of Justice Revised Manual for Prosecutors 19Republika ng Pilipinas KAGAWARAN NG KATARUNGAN Department of Justice Manila 05 October 2007 DEPARTMENT ORDER NO. 844 SUBJECT: DESIGNATION OF PERSONNEL In the interest of the service and pursuant to the provisions of existing laws, the following, prosceutors are hereby constituted as members of the Technical Working Group (TWG) in connec tioa with the preparation of the: 1) Systems and Procedures Manual for the National Prosecution Service and 2) Prosecutor’s Manual, to wit: SSP PURITA MERCADO-DEYNATA ~ Chairperson RSP ANTONIO B. ARELLANO. - Co-Chairperson RSP NONNATUS CAESAR R. ROJAS - Member CP JACINTO G. ANG - Member CP LORNA T. LEE - Member SSP ROSALINA P. AQUINO - Member SSPMA. EMILIAL. VICTORIO - Member ‘The Technical Working Group, which shell be under the direct supervision of Chief State Prosecutor Jovencito R. Zufio and assisted by ACSP Miguel F, Gudio, ir. andACSP Richard Anthony . Padullon, shall be charged with the review and assessment of existing policies; formulation and development of policy recommendations; oversee the progress of the manuals’ preparation; and conduct the evaluation and validation of said manuals nationwide in coordination with the DOJ ‘Management Services Office (MSO), ‘The Technical Working Group shall be assisted by a Secretariat, the members of which are the followi Corazon S. Navarrete = Dept. Legislative Liaison Specialist Eleanor P. Singson = Dept. Legislative Liaison Specialist Imelda A. Ballesteros - Dept. Legislative Liaison Specialist Evangeline C. Cruz Stenographic Reporter IV Support services, particularly the Administrative Service and the Finance and Management Service shall extend the necessary assistance to the Technical Working Group. ‘This Department Order shall take effect immediately and shall remain in force until further orders. (Sg6.) AGNES VST DEVANADERA Acting Secretary Copy fumished All concerned. 20 Revised Manual for ProsecutorsACKNOWLEDGMENT ‘There are so many to thank for their involvement in this project. Foremost, the distinguished institutions and individuals who, by their support and cooperation, have made the revision of the Manual for Prosecutors and the drafting of the Handbook on Administrative Case Management possible: the USAID represented by Mx. Gerardo Porta, Senior Civic Participation Specialist; USAID-ROLE represented by Atty. George V. Carmona, Chief of Party, ROLE and Atty. Redentor Buban; The Asia Foundation represented by Dr. Steven Rood, Country Representative, Atty. Carolyn A. Mercado, Sr. Program Officer, Atty. Damcelle Torres-Cortes, Program Officer and Ms. Michelle H. Domingo, Assistant Program Officer; MCA-PTP represented by Mr. Benjamin Allen, Chief of Party and Atty. Noel det Prado; and the ADB represented by Mr. Jaseem Ahmed, Director, Governance, Finance & Trade Division, Ms. Debra Kertzman, Mr. Joven ‘Z. Balbosa, Mr. Thatha Hla and Atty. Christine Lao. Individuals whose efforts as consultant-writers have contributed to the success of this undertaking: Atty. Gregorio A. Arizala, consultant for the Revised Manual for Prosecutors; Atty. Nilo C. Mariano and Mr. Ruben Canlas Jr., consultants for the Handbook on Administrative Case Management; Atty. Eric Joseph Mallonga, consultant for the spe~ cial section on Prosecuting Human Rights Violations and Providing Available Remedies ‘Therefor; Atty. Victor Mamalateo and Atty, Giovanni Vellente, consultants for the speciel section on Prosecuting Violations of the National Internal Revenue Code and Related Laws. ‘The professional guidance, ideas, enlightenment, encouragement and support given by Secretary Raul M, Gonzalez, Chief State Prosecutor Jovencito R, Zutio, Assistant Chief State Prosecutor Severino H. Gai, Jr., Assistant Chief State Prosecutor Miguel F. Gudio, Jz, Assistant Chief State Prosecutor Pedrito L. Rances and Assistant Chief State Prosecutor Richard Anthony D. Fadullon should be acknowledged. The critical job of reviewing, rationalizing and updating the old Manual and pre- senting the matrices during the validation sessions and the round table discussion were diligently and skillfully done by a technical working group (TWG): Chairperson SSP Purita Mercado-Deynata, Co-Chairperson RSP Antonio B. Arellano, and members RSP Nonnatus Caesar R. Rojas, CP Jacinto G. Ang, CP Loma T. Lee, SSP Rosalina P. Aquino and SSP Ma, Emilia Lucena-Victorio (please refer to D.O. No. 844, s. 2007 on the previous page, and Appendix “I” on p. 322 of this Manual). ‘This Manual was initially made possible through the Organizational Development Program for the National Prosecution Service (NPS) and its component project, the Procedural Development Project administered by the Management Services Office headed by Director Ma. Monica P. Pagunsan, assisted by its Planning Staff, Mr. Ryan C. Thomas, Ms. Janet A. Covamrubias and Ms. Marjorie Tan-delos Santos. These people provided Revised Manual for Prosecutors 2valuable policy research, process analysis, documentation, technical writing and project management. Secretariat and other administrative work were effectively and efficiently carried ‘out by Ms. Eleanor P. Singson, Ms. Corazon S. Navarrete, Ms. Imelda A. Ballesteros and Ms. Evangeline C. Cruz. They are the staff of Assistant Secretary ‘Teresita R. Domingo who most willingly committed them for this endeavor. NPS prosecutors, prosecution attomeys, administrative officers and representatives of the various agencies (since there are too many of them, attached are the respective lists) have shown their enthusiasm, attention to detail and correctness which provided valuable inputs during the consultations and validation sessions. Special mention is however given to Undersecretary Mary Ann Lucille L. Sering and Atty. Alton C. Durban of the Department of Environment and Natural Resources (DENR), who provided for specifics in the prosecu- tion of environmental cases. “The Financial and Management Service and Administrative Service have also been very supportive of the project by providing the necessary funding and logistics. Lastly, retired Justice Romeo J. Calleja, Sr., a great thinker who, with his expertise and smart thinking, proffered relevant and distinct suggestions during the round table dis- cussion, 22 Revised Manual for ProsecutorsPART I. PROSECUTION OF OFFENSES L t GENERAL PRINCIPLES 1, The prosecution of cases shall be under the direct control and supervision of the prosecutor, While he may tumover the actual prosecution of the criminal case to a private prosecutor, it is necessary that he be present at the trial until the final termination of the case; otherwise, if he is absent, it cannot be gainsaid that the trial is under his supervision and control (Pinote v. Ayco, 477 SCRA 409 [2005]). 2. The trial prosecutor may, at any time, in the exercise of his discretion, take over from the private prosecutor the actual conduct of the trial. 3. A prosecutor, by the very nature of his office, is under no compulsion to file a particular criminal Information where he is not convinced that he has evidence to support the allegations thereof or he is not convinced of the merits of the ease (Torves v. Aguinaldo, 461 SCRA 599 [2005 }. 4. The prosecution office has no more control over cases filed in court; thus, a motion for reinvestigation should be addressed to the trial judge (Baltazar v. Pantig, G. R. No. 149111, August 9, 2005). 5. Once a case has already been filed in court, a trial prosecutor may be compelled to prosecute the case notwithstanding his personel convictions or opinions. He should present the case to the best of his ability and let the court decide the merits of the case on the basis of the evidence adduced by both parties. DEFINITION OF TERMS Arraignment — is the formal mode and manner of implementing the con- stitutional right of the accused to be informed of the nature and cause of the accusation against him (Sec. 13{2), 1987 Constitution of the Philippines). An arraignment is necessary in order to fix the identity of the accused, to inform him of the charge and to give him an opportunity to plead (14 Am. Jur, p.939, G.V. Jacinto, Criminal Procedure). 2. Arrest - the taking of a person into custody in order that he may be bound to angwer for the commission of an offense (Sec. 1, Rule 113, Revised Rules on Criminal Procedure). 3. Bail — is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court es required under the conditions hereinafter specified. Bail may be given in the form, Revised Manual for Prosecutors 2324 6. 10. M of corporate surety, property bond, cash deposit or recognizance (Sec. 1, Rule 114, Revised Rules on Criminal Procedure). Bail Bond ~ is an obligation given by the accused with onc or more sureties, with the condition to be void upon the performance by the accused of such acts as he may legally be required to perform (Villasenor v. Abano, 21 SCRA 312) ‘Complaint — a swom written statement charging a person with an offense, sub- scribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated (Sec. 3, Rule 110, Revised Rules on Criminal Procedure). Continued/Continuous/Continuing Crime - is a single crime, consisting of a series of acts but all arising from one criminal resolution (The Revised Penal Code ~ Criminal Law, Book One, 15th Ed., Luis B. Reyes, p. 676). Criminal action —A criminal action is one by which the State prosceutes a person for an act or omission punishable by law (Sec. 3(6), Rule 1, 1997 Rules of Civil Procedure) Information ~ is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court (Sec. 4, Rule 110, supra.). Inquest - an inforraal and summary investigation conducted by a public prosecu- tor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court, Offended Party - is the person against whom or against whose property the crime was committed (Sec. 3, Rule 110, supra) and to whom the offender is civilly liable in light of Article 100 of the Revised Penal Code that “every person criminally liable is also civilly liable (Garcia » C4, 266 SCRA 678 (1997]); the person actually injured and whose feeling is offended. Personal Knowledge of Facts (in arrests without warrant) — must be based upon probable cause which means an actual belief or reasonable grounds of suspicion, The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i. supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be Revised Manual for Prosecutorsfounded on probable cause, “coupled with good faith on the part of the peace officers making the arrest.” (Umil, et. al. vs. Ramos, 202 SCRA 251 [1991]}. 12, Plea ~ is the reply of the accused to the charge. In criminal prosecution, the accused has to plead to the indictment, which he may do (1) by pleading to the jurisdiction, that is, alleging that the court has no jurisdiction to try him; (2) by a demurrer; or (3) by some plea in bar, either a general plea, “guilty” or “not guilty” (Osborn’s Concise Law Dictionary, 15% Ed. John Burke, p. 254). 13, Plea Bargaining — the process where the accused usually pleads guilty to a lesser offense, or to only one or some of the counts of a mult-count indictment in return for a lighter sentence than that for the graver charge (Black's Law Dictionary, 5* Ed, p. 1037). 14, Preliminary Investigation ~ is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial (Sec. J, Rule 112, Revised Rules on Criminal Procedure). 15. Probable Cause (for the purpose of filing an Information) ~ has been defined as a reasonable ground of presumption that a matter is or may be well-founded; such a state of facts in the mind of the prosecutor as would lead a person of ordi- nary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so, 16. Probable Cause (as a ground for warrantless arrest) ~ an actual belief or reasonable grounds of suspicion (People vs. Tudtud, GR No. 144037, Sept. 26, 2003) that the person to be arrested is about to commit or is attempting to commit a crime, or is in the act of committing a crime, or has committed a crime, either in the presence or without the presence of the arresting officer. 17. Recognizance ~ is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial (People v. Abner, 87 Phil. 566). 18, Release on Recognizance ~ the pre-trial release of an arrested person who prom- ises, usually in writing but without a surety or posting bond, to appear for trial at a later date (Black's Law Dictionary, p. 1316). 19, Summary Investigation —refers to the investigation conducted by the prosecutor to determine the existence or non-existence of probable cause in cases that do not require preliminary investigation (Sec. 8, Rule 112, as amended, Revised Rules on Criminal Procedure), namely those involving offenses in which the prescribed Revised Manual for Prosecutors 25mn. 26 penalty of imprisonment does not exceed four (4) years and two (2) months, regardless of the fine. 20. Summary Procedure (as distinguished from Summary Investigation) ~ refers to the court procedure in criminal cases covered by Rule 123 of the Revised Rules on Criminal Procedure, involving offenses in which the penalty of imprisonment prescribed by law does not exceed six (6) months, or fine not exceeding one thousand pesos (Php1,000.00). 21. Trial —is a judicial examination of the claims at issue in a ease which is presented. by the prosecution and defense to cnable the court to arrive at a judgment pro- nouncing either the guilt or innocence of the accused (US v. Raymundo, 14 Phil. 416 (1909) GENERAL RULES A. COMPLAINT. 1. Form of the Complaint Filed Before the Prosecutor's Office A written complaint filed with the Office of the Prosecutor may come in different forms, to wit: a. areferral letter from the law enforcement agency; b. an affidavit of the offended party or any other person authorized by law to file a criminal complaint; c. aletter (sworn or not) from the offended party, or other persons autho- rized by law to file the complaint; d. a referral letter from a committee of the Senate or House of Representatives or any other government agency or institution; and ¢. a formal complaint similar in form to that filed in court. 2. Policy on Forms of Complaint Filed with the Prosecutor’s Office a. Asa general rule, a complaint filed with the prosecutor must be swom to by the complainant, to discourage harassment charges. In which case, the prosecutor shall warn the complainant that any false statement in the complaint may give rise to a finding of a prima facie case for perjury before the same office. Revised Manual for Prosecutorsb. However, referral letter-complaints from law enforcement agencies or government institutions need not be swom to by the complainants, c. Amere letter suffices to start an investigation, except if the offense charged is one which cannot be prosecuted de oficio, or is private in nature, ie, where the law requires that it be started by a complaint swom to by the offended party (People v, Sangil, 4 SCRA 722). However, upon the start of the investigation, the investigating officer should administer the oath to the complainant. This liberal policy is premised upon the fact that the complainant is unschooled in law, (Grenen v. Consolacion, 4 SCRA 722 [1962)) and it is the inherent power of the prosecutor to even initiate motu proprio «criminal investigation without waiting for a formal complaint to be filed by the police agency or the aggrieved party. (Sec. 3, Rule 110, supra). 3. Persons Authorized to File Complaints The following persons are authorized to file a complaint: a. the offended party; + ven if the names of the offended parties are not alleged, if the offense belongs to the class of harmful ones (illegal practice of medicine), the victims should be considered offended parties (Diel v. Martinez, 76 Phil. 273). b. any other person or persons authorized by law to file a complaint; c. any law enforcement officer charged with the enforcement of the law violated, + A “complaint” filed with the prosecutor prior to judicial action may be filed by any person (Salazar v. People, G.R. No. 149472, October 15, 2002) + Private persons may denounce a violation of banking laws (Perez ¥. Monetary Board, 20 SCRA 592). Revised Manual for Prosecutors 27