Module 7

PRE-TRIAL RULE 118

Pre-trial is a procedural device intended to clarify and limit the basic

issues between the parties and to take the trial of cases out of the
realm of surprise and maneuvering. It thus paves the way for a less
cluttered trial and resolution of the case (LCK Industries v. Planters
Development Bank, G.R. No. 170606, November 23, 2007).

Period of pre-trial It shall be held after arraignment and within 30

days from the date the court acquires jurisdiction over the person of
the accused unless a shorter period is provided for in special laws or
circulars of the Supreme Court (Sec. 1, Rule 118). If the accused is
under preventive detention, the pre-trial shall be held within 10 days
after arraignment unless a law provides for a shorter period [A.M. No.
03-1-09-SC, IB (1)].

Court in which pre-trial is mandatory

Pre-trial is mandatory in all criminal cases cognizable by the:

1. Sandiganbayan;
2. RTC;
3. Metropolitan Trial Court;
4. Municipal Trial Court in Cities;
5. Municipal Trial Court; and 6. Municipal Circuit Trial Court (Sec. 1,
Rule 118)

MATTERS TO BE CONSIDERED DURING PRETRIAL

1. Plea bargaining;
2. Stipulation of facts;
3. Marking for identification of evidence of parties;

NOTE: No evidence shall be allowed to be presented and offered

during the trial other than those identified and marked during the pre-
trial except when allowed by the court for good cause shown [I-B (2),
AM No. 03-1-09-SC]

4. Waiver of objections to admissibility of evidence;

5. Modification of the order of the trial if one of the accused admits

the charge but interposes a lawful defense (reverse trial); and

6. Such matters as will promote a fair and expeditious trial of the

criminal and civil aspects of the case (Sec. 1, Rule 118).

NOTE: If the accused has pleaded not guilty to the crime charged, he
may state whether he interposes a negative or affirmative defense. A
negative defense shall require the prosecution to prove the guilt of
the accused beyond reasonable doubt, while an affirmative defense
may modify the order of trial and require the accused to prove such
defense by clear and convincing evidence (Sec. 3, Speedy Trial Act).

Plea-bargaining It is the process whereby the accused, the offended

party and the prosecution work out a mutually satisfactory disposition
of the case subject to court approval. It usually involves the
defendant’s pleading guilty to a lesser offense or to only one or some
of the counts of a multi-count indictment in return for a lighter
sentence than that for the graver charge. In this jurisdiction, plea
bargaining has been defined as "a process whereby the accused and
the prosecution work out a mutually satisfactory disposition of the
case subject to court approval. (Estipona Jr. vs. Lobrigo, GR No.
226679, August 15, 2017) It usually involves the defendant’s
pleading guilty to a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a lighter sentence
than that for the graver charge. (People vs. Mamarlon, GR. No.
137554, October 1, 2003)

Duty of the judge when plea bargaining is agreed upon

During the pre-trial, the trial judge shall consider plea-bargaining
arrangements, except in cases for violations of the Comprehensive
Dangerous Drugs Act regardless of the imposable penalty (Sec. 23,
RA 9165).

Duty of the judge when plea bargaining fails

1. Adopt the minutes of preliminary conference as part of the pre-trial

proceedings, confirm markings of exhibits or substituted photocopies
and admissions on the genuineness and due execution of
documents and list object and testimonial evidence;

2. Scrutinize every allegation of the information and the statements

in the affidavits and other documents which form part of the record of
the preliminary investigation and other documents identified and
marked as exhibits in determining further admissions of facts,
documents and in particular as to the following:
a. The identity of the accused;
b. Court’s territorial jurisdiction relative to the offense/s charged;
c. Qualification of expert witness;
d. Amount of damages;
e. Genuineness and due execution of documents;
f. The cause of death or injury, in proper cases;
g. Adoption of any evidence presented during the preliminary
investigation;
h. Disclosure of defenses of alibi, insanity, self-defense, exercise
of public authority and justifying or exempting circumstances; and
i. Such other matters that would limit the facts in issue.

3. Define factual and legal issues;

4. Ask parties to agree on the specific trial dates and adhere to the
flow chart determined by the court which shall contain the time
frames for the different stages of the proceeding up to promulgation
of decision and use the time frame for each stage in setting the trial
dates;
5. Require the parties to submit to the Branch COC the names,
addresses and contact numbers of witnesses that need to be
summoned by subpoena; and 6. Consider modification of order of
trial if the accused admits the charge but interposes a lawful defense
(A.M. No. 03-1- 09-SC). Duty of the judge before pre-trial conference

The judge before pre-trial conference must study the following:

1. Allegations of the information;

2. Statements in the affidavits of witnesses; and
3. Other documents which form part of the record of the preliminary
investigation (A.M. No. 03-1-09-SC).

Duty of the branch clerk of court during the preliminary conference

During the preliminary conference, the branch clerk of court shall:
1. Assist the parties in reaching a settlement of the civil aspect of
the case;
2. Mark the documents to be presented as exhibits and copies
thereof attached to the records after comparison;
3. Ascertain from the parties the undisputed facts and admissions
on the genuineness and due execution of documents marked as
exhibits; and 4. Consider such other matters as may aid in the
prompt disposition of the case(A.M. No. 03-1-09-SC).

NOTE: The proceedings during the preliminary conference shall be

recorded in the minutes of preliminary conference to be signed by
both parties and counsel (A.M. No. 03-1-09-SC). Order of pre-trial
conference Order for pre-trial conference must contain orders:
1. Requiring the private offended party to appear thereat for
purposes of pleabargaining and for other matters requiring his
presence;
2. Referring the case to the branch clerk of court, if warranted, for
a preliminary conference to be set at least 3 days prior to the pre-trial
to mark the documents or exhibits to be presented by the parties and
copies thereof to be attached to the records after comparison and to
consider other matters as may aid in its prompt disposition; and
3. Informing the parties that no evidence shall be allowed to be
presented and offered during the trial other than those identified and
marked during the pre-trial except when allowed by the court for
good cause shown. In mediatable cases, the judge shall refer the
parties and their counsel to the Philippine Mediation Center unit for
purposes of mediation if available (A.M. No. 03-1-09-SC).

WHAT THE COURT SHOULD DO WHEN PROSECUTION AND

OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE
ACCUSED

The court shall:

1. Issue an order which contains the plea bargaining arrived at;
2. . Proceed to receive evidence on the civil aspect of the case;
and
3. Render and promulgate judgment of conviction, including the
civil liability or damages duly established by the evidence (A.M.
No. 03-1-09-SC).

PRE-TRIAL AGREEMENT

All agreements or admissions made or entered into during the pre-

trial conference shall be reduced in writing and signed by the
accused and counsel; otherwise the same cannot be used against
the accused (Sec. 2, Rule 118) (2004 Bar).

NOTE: The court shall approve the agreements covering the

matters in the pre-trial conference. Pre-trial agreement as
evidence

Requisites before a pre-trial agreement may be used as evidence:

1. It is reduced in writing; and
2. Signed by the accused and his counsel The agreements in
relation to matters referred to in Sec. 1, Rule 118 are subject to the
approval of the court(Sec. 2, Rule 118).

Provided, that the agreement on the plea of the accused to a

lesser offense may only be revised, modified, or annulled by the
court when the same is contrary to law, public morals, or public
policy (Sec. 3, Speedy Trial Act of 1998). NOTE: The requirement
of Sec. 2, Rule 118 is intended to further safeguard the rights of
the accused against improvident or unauthorized agreements or
admissions which his counsel may have entered into, or which any
person may have ascribed to the accused without his knowledge,
as he may have waived his presence at the pre-trial conference
(People vs. Uy, G.R. No. 128046, March 7, 2000).

Amendment of pre-trial agreement

Pre-trial may be amended on the grounds of:

1. Agreement; or

2. Palpable mistake

NON-APPEARANCE DURING PRE-TRIAL

Effect of non-appearance of counsel for the accused or the

prosecutor during the pretrial without valid justification.

The court may impose proper sanctions or penalties in the form of

reprimand, fines or imprisonment, if the counsel does not offer an
acceptable excuse for his lack of cooperation(Sec. 3, Rule 118;
Sec. 5, Speedy Trial Act). Rationale of the exclusion of the
accused in the mandatory appearance during pre-trial The
principal reason why the accused is not included in the mandatory
appearance is the fear that to include him is to violate his
constitutional right to remain silent [Sec. 12(1), Art. III, 1987
Constitution].
NOTE: Unless otherwise required by the court, personal
appearance of the accused at the conference is not indispensable.
This is aside from the consideration that the accused may waive
his presence at all stages of the criminal action, except at the
arraignment, promulgation of judgment or when required to appear
for identification (Regalado, 2008).

PRE-TRIAL ORDER Pre-trial order It is an order issued by the

court reciting the actions taken, the facts stipulated, and the
evidence marked during the pre-trial conference (Sec. 4, Rule
118).

Purpose and effect of the pre-trial order

The pre-trial order shall:

1. Bind the parties;

2. Limit the trial to those matters not disposed of; and

3. Control the course of the action during the trial, unless modified
by the court to prevent manifest injustice (Ibid.; Sec. 5, Speedy
Trial Act of 1998).

NOTE: To prevent manifest injustice, however, the court, upon its

own initiative or at the instance of any

It must be issued within 10 days after the termination of the pre-

trial.

It shall set forth the following:

1. Actions taken during the pre-trial conference;

2. Facts stipulated;

3. Admissions made;

4. Evidence marked; and

5. Number of witnesses to be presented and the schedule of trial

The “Minutes of Preliminary

All agreements or admissions made or entered during the pre-trial

conference shall be reduced in writing and signed by both the
accused and Conference may be signed by either the party or his
counsel. counsel; otherwise, they cannot be used against the
accused.

REFERRAL OF SOME CASES FOR COURT ANNEXED

MEDIATION ANDJUDICIAL DISPUTE RESOLUTION(A.M. No,
11-1-6-SCPHILJA)

Purpose of Court Annexed Mediation (CAM) and Judicial Dispute

Resolution (JDR) The diversion of pending court cases both to
CAM and to JDR is plainly intended to put an end to pending
litigation through a compromise agreement of the parties and
thereby help solve the ever-pressing problem of court docket
congestion. It is also intended to empower the parties to resolve
their own disputes and give practical effect to the State Policy
expressly stated in the ADR Act of 2004 (RA 9285), to wit: “To
actively promote party autonomy in the resolution of disputes or
the freedom of the parties to make their own arrangement to
resolve disputes. Towards this end, the State shall encourage and
actively promote the use of Alternative Dispute Resolution (ADR)
as an important means to achieve speedy and impartial justice and
de-clog court dockets.” Role of the judge in mediation The pre-trial
judge will rule on the compromise agreement reached through
mediation. If court-annexed mediation fails, the pre-trial judge
takes on the role of conciliator, neutral evaluator and mediator.
The judge will sit down with counsel and their parties to hear a
summary of the case and will attempt to conciliate the differences
between the parties. As a neutral evaluator, the judge will be free
to express his views on the chances of each party in the case. At
this point, if the parties agree to reconsider and undergo
mediation, the judge will facilitate the settlement as a mediator. If
the parties still refuse mediation, however, the judge will then issue
an order referring the case to another judge. The order will specify
that both CAM and JDR have failed.

Three stages of diversion of cases to CAM and JDR

1. The first stage is the CAM where the judge refers the parties to
the Philippine Mediation Center (PMC) for the mediation of their
dispute by trained and accredited mediators.

2. Upon failing to secure a settlement of the dispute during the first

stage, a second attempt is made at the JDR stage. There, the JDR
judge sequentially becomes a mediator conciliator-early neutral
evaluator in a continuing effort to secure a settlement. Still failing
that second attempt, the mediator-judge must turn over the case to
another judge (a new one by raffle or nearest/pair judge) who will
try the unsettled case. The trial judge shall continue with the pre-
trial proper and, thereafter, proceed to try and decide the case.

3. The third stage is during the appeal where covered cases are
referred to the PMCAppeals Court Mediation (ACM) unit for
mediation. Cases covered by CAM and JDR

The following cases shall be (1) referred to CAM and (2) be the
subject of JDR proceedings:

1. All civil cases and the civil liability of criminal cases covered by
the Rule on Summary Procedure, including the civil liability for
violation of BP 22, except those which by law may not be
compromised;

2. Special proceedings for the settlement of estates;

3. All civil and criminal cases filed with a certificate to file action
issued by the Punong Barangay or the Pangkat ng
Tagapagkasundo under the Revised Katarungang Pambarangay
Law;
4. The civil aspect of Quasi-Offenses under Title 14 of the RPC;

5. The civil aspect of less grave felonies punishable by correctional

penalties not exceeding 6 years imprisonment where the offended
party is a private person;

6. The civil aspect of estafa, theft and libel;

7. All civil cases and probate proceedings, testate and intestate,

brought on appeal from the exclusive and original jurisdiction
granted to the first level courts under Sec. 33(1) of the Judiciary
Reorganization Act of 1980;

8. All cases of forcible entry and unlawful detainer brought on

appeal from the exclusive and original jurisdiction granted to the
first level courts under Sec. 33(2) of the Judiciary Reorganization
Act of 1980;

9. All civil cases involving title to or possession of real property or

an interest therein brought on appeal from the exclusive and
original jurisdiction granted to the first level courts under Sec.
33(3) of the Judiciary Reorganization Act of 1980; and

10. All habeas corpus cases decided by the first level courts in the
absence of the RTC judge that are brought up on appeal from the
special jurisdiction granted to the first level courts under Sec. 35 of
the Judiciary Reorganization Act of 1980.

CAM vs. Court Referred Mediation (CRM) CAM CRM

Any mediation process conducted under the auspices of the court

that has acquired jurisdiction of the dispute.

A mediation ordered by a court to be conducted in accordance

with the agreement of the parties when an action is prematurely
commenced in violation of such agreement

Cases which CANNOT be referred to CAM and JDR

1. Civil cases which by law cannot be compromised (Art. 2035,
NCC);

2. Other criminal cases not covered under paragraphs 3 to 6

above; 3. Habeas Corpus petitions;

4. All cases under RA 9262 (Violence against Women and

Children); and

5. Cases with pending application for Restraining Orders or

Preliminary Injunctions. However, in cases covered under 1, 4 and
5 where the parties inform the court that they have agreed to
undergo mediation on some aspects thereof, e.g., custody of
minor children, separation of property, or support pendente lite, the
court shall refer them to mediation. Appellate Court Mediation
(ACM) It is a mediation program in the CA, corollary to CAM in the
lower courts.

It provides a conciliatory approach in conflict resolution. Through

ACM, the CA promotes a paradigm shift in resolving disputes from
a right-based (judicial) to an interest-based (mediation) process.
Persons qualified to serve as mediator in appellate court mediation
Only an Appellate Mediator who is trained and accredited by the
Philippine Judicial Academy (PHILJA) can mediate in the CA. As a
basic qualification, he/she must be a retired justice, judge, senior
member of the Bar, or senior law professor, who possesses
creative problemsolving skills and has strong interest in mediation.

Distinction among CAM, JDR and ACM

CAM

A case eligible for mediation at a First Level Court or RTC during

the pre-trial stage is referred by the presiding judge to the
Philippine Mediation Center Unit for mediation. Mediation is
successful if the parties enter into a Compromise Agreement, and
the judge renders a decision based on this agreement. If it fails or
the parties refuse to undergo mediation, the case goes back to
court for trial

JDR

The mediation process is also in the lower courts and mediation is

conducted just like in CAM. If mediation fails or the parties refuse
mediation, the case goes back to the judge who does not yet try
the case. The judge, acting sequentially as Conciliator, Neutral
Evaluator and Mediator or a combination of the three, attempts to
convince the parties to settle their case amicably. If the parties still
refuse to settle, the case goes back to court for trial.

ACM

The case has been tried and judgment has been rendered at the
lower courts but has been appealed.

and, thereafter, the court shall enter an order dismissing the case.
If partial settlement is reached, the parties shall, with the
assistance of counsel, submit the terms thereof for the appropriate
action of the court, without waiting for resolution of the unsettled
part.

Effect of the non-compliance of the other party with the agreement

reached

The court which approved the compromise agreement must be

informed immediately for it to issue an order to comply. Sanctions
will be imposed for non-compliance. The aggrieved party may also
apply for a writ of execution.

Remedy if the case is not resolved during JDR

1. Multiple sala court – If the case is not resolved during the JDR,
the case shall be raffled to another branch for the pre- trial proper
until judgment. For cases with pending applications for restraining
orders or preliminary injunctions, the judge to whom the case was
raffled shall rule on the said applications. During the pre-trial
stage, the judge refers the case to CAM, but if the parties do not
settle at CAM, the case will be raffled to another branch for JDR. If
the parties do not settle at JDR, the case will be returned to the
branch that ruled on the applications for the pre-trial proper and up
to judgment.

2. Single sala court – Unless otherwise agreed upon as provided,

the JDR proceedings will be conducted by the judge of the pair
court, if any, otherwise, by the judge of the nearest court as
determined by the concerned Executive Judge. The JDR
proceedings shall be conducted at the station where the case was
originally filed. The result of the JDR proceedings shall be referred
to the court of origin for appropriate action, e.g. approval of the
compromise agreement, trial, etc. Notwithstanding the foregoing,
before the commencement of the JDR proceedings, the parties
may file a joint written motion requesting that the court of origin
conduct the JDR proceedings and trial.

3. Family court – Unless otherwise agreed upon as provided

below, the JDR proceedings in areas where only one court is
designated as a family court, shall be conducted by a judge of
another branch through raffle. However, if there is another family
court in the same area, the family court to whom the case was
originally raffled shall conduct JDR proceedings and if no
settlement is reached, the other family court shall conduct the pre-
trial proper and trial. Notwithstanding the foregoing, before
commencement of the JDR proceedings, the parties may file a
joint written motion requesting that the family court to which the
case was originally raffled shall conduct the JDR proceedings and
trial. Despite the non-mediatable nature of the principal case, like
annulment of marriage, other issues such as custody of children,
support, visitation, property relations and guardianship, may be
referred to CAM and JDR to limit the issues for trial.
4. Commercial, intellectual property and environmental courts –
Unless otherwise agreed upon as provided below, the JDR
proceedings in areas where only one court is designated as
commercial or intellectual property or environmental court,
hereafter referred to as special court, shall be conducted by
another judge through raffle and not by the judge of the special
court. Where settlement is not reached, the judge of the special
court shall be the trial judge. Any incident or motion filed before the
pre-trial stage shall be dealt with by the special court that shall
refer the case to CAM. Notwithstanding the foregoing, before
commencement of the JDR proceedings, the parties may file a
joint written motion requesting that the special courts to which the
case was originally raffled.

TRIAL RULE 119

It is the examination before a competent tribunal according to the
laws of the land, of facts put in issue in a case for the purpose of
determining such issue.
When trial shall commence

1. The trial shall commence within 30 days from receipt of pre-trial

order (Sec. 1, Rule 119). 2. If the accused is to be tried again
pursuant to an order for a new trial, the trial shall commence within
30 days from notice of the order granting a new trial(Sec. 5, Rule
119).

NOTE: Period may be extended to one not exceeding 180 days

from notice of order if period becomes impractical due to
unavailability of witness and other factors (Sec. 5, Rule 119).

Summary of Periods

Arraignment

a. Within 30 days from the date the court acquires jurisdiction over
the accused.

b. When the accused is under preventive detention, the accused

shall be arraigned within 10 days from date of raffle.

Pre-trial

a. After arraignment and within 30 days from the date the court
acquires jurisdiction over the person of the 1.00 gram and above
(metamphetamine hydrochloride or shabu only)

b. If the accused is under preventive detention, the pre-trial shall

be held within 10 days after arraignment. Trial The general period
applicable is 30 days from receipt of the pre-trial order. Hearing

Hearing

is not confined to trial, but embraces several stages of litigation

including the pretrial stage. A hearing does not necessarily imply
the presentation of oral or documentary evidence in open court but
that the parties are afforded an opportunity to be heard (Republic
v. Sandiganbayan, G.R. No. 104768, July 21, 2003).
Continuous Trial

The trial once commenced, shall continue from day to day as far
as practicable until terminated. However, it may be postponed for
a reasonable period of time for good cause (Sec. 2, Rule 119).

NOTE: The granting or refusal of an application for continuance or

postponement of the trial lies within the sound discretion of the
court and the discretion will not be interfered with by mandamus or
by appeal, unless there is grave abuse of discretion.

Purpose of the continuous trial system The purpose of the system

is to “expedite the decision or resolution of cases in the trial courts”
considering the mandate of Sec. 12, Art. XVIII of the 1987
Constitution. SC Circular No. 1-89 requires that the “judge shall
conduct the trial with utmost dispatch, with judicious exercise of
the court's power to control the trial to avoid delay” and that “a
strict policy on postponements shall be observed.”

NOTE: The SC adopted the continuous trial system as a mode of

judicial fact-finding and adjudication conducted with speed and
dispatch so that trials are held on the scheduled dates without
postponement, the factual issues for a trial well defined at pre-trial
and the whole proceedings terminated and ready for judgment
within 90 days from the date of initial hearing, unless for
meritorious reasons an extension is permitted.

Duties of the Presiding Judge under the continuous trial system

1. Adhere faithfully to the session hours prescribed by laws;

2. Maintain full control of the proceedings;

3. Effectively allocate and use time and court resources to avoid

court delays; and 4. Continuous trial on a weekly or other short-
term trial calendar at earliest possible time.

Factors to be considered for granting continuance Whether or not:

1. The failure to grant a continuance would make a continuation of
such proceeding impossible or result in a miscarriage of justice;
and

2. The case, as a whole, is so novel, unusual and complex, due to

the number of accused or the nature of the prosecution, or that it is
unreasonable to expect adequate preparation within the periods of
time established therein (Sec. 4, Rule 119).

Prohibited grounds for a continuance

1. Congestion of the court’s calendar;

2. Lack of diligent preparation;

3. Failure to obtain available witnesses on the part of the

prosecutor (Sec. 4, Rule 119).

Time limit for the trial of criminal cases

GR: Trial shall not exceed 180 days from the first day of trial. (Sec.
2, Rule 119)

XPNs:

1. Those governed by the rules on summary procedure;

2. Those where the penalty prescribed by law does not exceed 6

months imprisonment or a fine of P1,000 or both; and

3. Those authorized by the Chief Justice of the SC(Sec. 6, RA

8493, Speedy Trial Act).

Commencement of trial may be extended based on the following

conditions:

1. For the 180 days, for the first 12 calendar month period from
the effectivity of the law

2. 120 days for the second 12-month period

3. 80 days for the third 12-month period (Sec. 9, RA 8493)

Exclusions in computation of time within which trial must
commence

1. Any periods of delay resulting from other proceedings

concerning the accused, including but not limited to the following:

a. Examination of the physical and mental condition of the

accused;

b. Proceedings with respect to other criminal charges against the

accused;

c. Extraordinary remedies against interlocutory orders;

d. Pre-trial proceedings; provided, that the delay does not exceed

30 days;

e. Orders of inhibition, or proceedings relating to change of venue

of cases or transfer from other courts;

f. A finding of the existence of a prejudicial question; or

g. Those delays reasonably attributable to any period, not to

exceed 30 days, during which any proceeding concerning the
accused is actually under advisement.

2. Any period of delay resulting from the absence or unavailability

of an essential witness;

3. Any period of delay resulting from the mental incompetence or

physical inability of the accused to stand trial;

4. If the information is dismissed upon motion of the prosecution

and thereafter a charge is filed against the accused for the same
offense, any period of delay from the date the charge was
dismissed to the date the time limitation would commence to run
as to the subsequent charge had there been no previous charge;

5. A reasonable period of delay when the accused is joined for trial

with a coaccused over whom the court has not acquired
jurisdiction, or, as to whom the time for trial has not run and no
motion for separate trial has been granted; and

6. Any period of delay resulting from a continuance granted by any

court motu proprio, or on motion of either the accused or his
counsel, or the prosecution, if the court granted the continuance
on the basis of its findings set forth in the order that the ends of
justice served by taking such action outweigh the best interest of
the public and the accused in a speedy trial(Sec. 3, Rule 119).

The time involved in the proceedings in a petition for transfer of

venue can only be excluded from said time limit if it was the
accused who instituted the same. Further, the petition for transfer
of venue cannot interrupt proceedings unless a TRO or writ of
preliminary injunction has been issued in accordance with Sec. 7
of Rule 65 as said petition is akin to a petition for certiorari (Mari
vs. Gonzales, G.R. No. 187728, September 12, 2011).

Remedies of the accused when a prosecuting officer without just

cause secures postponements of the trial against his protest
beyond a reasonable period of time:

1. Mandamus to compel a dismissal of the information; or

2. If he is restrained of his liberty, by habeas corpus to obtain his

freedom.

Acts of the counsel, attorney, or prosecutor which would warrant a

sanction

1. Knowingly allowing the case to be set for trial without disclosing

that a necessary witness would be unavailable for trial;

2. Files a motion solely for delay, knowing it to be frivolous and

without merit;

3. Knowingly makes a statement in order to obtain continuance

which he knows to be false and which is material to the granting of
a continuance; and
4. Willfully fails to proceed to trial without justification (Sec. 8, Rule
119).

Order of trial in criminal cases

In criminal cases, the trial shall proceed in the following order:

1. The prosecution shall present evidence to prove the charge

and, in the proper case, the civil liability.

NOTE: In Dangerous Drugs Cases, it is the duty of the

prosecution to present a complete picture detailing the buy-bust
operation – from the initial contact between the poseur-buyer
and the pusher, the offer to purchase, the promise or payment
of the consideration, until the consummation of the sale by the
delivery of the illegal subject of sale (People v. Ong, G.R. No.
175940, February 6, 2008).
2. The accused may present evidence to prove his defense,
and damages, if any, arising from the issuance of a provisional
remedy in the case.

3. The prosecution may present rebuttal evidence unless the

court permits them to present additional evidence bearing upon
the main issue.

NOTE: Rebuttal evidence is any competent evidence to

explain, repel, counteract or disprove the adversary’s proof. It is
receivable only where new matters have been developed by the
evidence of one of the parties and is generally limited to a reply
to new points.

4. The accused may present rebuttal evidence unless the court

permits them to present additional evidence bearing upon the
main issue.
4. Upon admission of the evidence of the parties, the case shall
be deemed submitted for decision unless the court directs them
to argue orally or to submit written memoranda (Sec. 11, Rule
119).
5. NOTE: The order of the trial may be modified when the
accused admits the act or omission charged in the complaint or
information but interposes a lawful defense [Sec. 11 (e), Rule
119].

Reverse trial and when may it be resorted to

When the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the
trial court may allow the accused to present his defense first
and thereafter give the prosecution an opportunity to present its
rebuttal evidence.
A departure from the order of the trial is not reversible error as
where it was agreed upon or not seasonably objected to, but
not where the change in order of the trial was timely objected
by the defense.
NOTE: Where the order of the trial set forth was not followed
by the court to the extent of denying the prosecution an
opportunity to present evidence, the judgment is a nullity. If
there is not enough evidence to prove the accused’s guilt
beyond reasonable doubt, then the defense should file
demurrer to evidence.
Case deemed submitted for decision Upon the admission of the
parties’ evidence-inchief, rebuttal and sur-rebuttal proof, the
case is deemed submitted for decision unless the court directs
them to argue their respective memoranda. Mistake in charging
the proper offense
GR: When it becomes manifest at any time before judgment
that a mistake has been made in charging the proper offense,
the accused cannot be convicted of the offense charged or any
other offense necessarily included therein.
XPN: The accused shall not be discharged if there appears to
be a good cause to detain him. In such case, the court shall
commit the accused to answer for the proper offense and
dismiss the case upon filing of the proper information (Sec. 19,
Rule 119).
NOTE: This rule is predicated on the fact that an accused has
the right to be informed of the nature and cause of the
accusation against him.

Reopening of the proceedings

At anytime before finality of judgment of conviction, the judge

may motu proprio or upon motion, with hearing in either case,
reopen the proceedings to avoid a miscarriage of justice. The
proceedings shall be terminated within 30 days from the order
granting it (Sec. 24, Rule 119).

The case may be reopened upon the showing of the following

requirements:

1. The reopening must be before finality of a judgment of

conviction;
2. The order is issued by the judge on his own initiative or upon
motion;
3. The order is issued only after the hearing is conducted;
4. The order intends to prevent a miscarriage of justice; and
5. The presentation of additional and/or further evidence
should be terminated within thirty days from the issuance of the
order

INSTANCES WHEN PRESENCE OF ACCUSED IS

REQUIRED BY LAW

In the following instances, the presence of the accused is

required:
1. At arraignment and plea, whether of innocence or of guilt;
(Sec. 1(b), Rule 116)
2. During trial whenever necessary for identification purposes;
and(Sec. 1 (c), Rule 115)
3. At the promulgation of sentence, unless it is for a light
offense, in which case, the accused may appear by counsel or
representative. (Sec. 6, Rule 120)

Waiver of Right GR:

The accused may waive his presence at the trial pursuant to

the stipulations set forth in his bail. (Sec. 1 (c), Rule 115)

XPN: Unless his presence is specifically ordered by the court

for purposes of identification (Sec. 1 (c), Rule 115)

Duty of the public attorney when accused is imprisoned It shall

be his duty to do the following:

1. Promptly undertake to obtain the presence of the prisoner for

trial or cause a notice to be served on the person having
custody of the prisoner requiring such person to so advice the
prisoner of his right to demand trial.

2. Upon receipt of that notice, the custodian of that prisoner

shall promptly advice the prisoner of the charge and of his right
to demand trial. If at any time thereafter the prisoner informs his
custodian that he demands such trial, the latter shall cause
notice to that effect to be sent promptly to the public attorney.

3. Upon receipt of such notice, the public attorney shall

promptly seek to obtain the presence of the prisoner for trial.

4. When the custodian of the prisoner receives from the public

attorney a properly supported request for the availability of the
prisoner for purposes of trial, the prisoner shall be made
available accordingly (Sec. 7, Rule 119).

Conduct of trial for several accused

GR: When two or more persons are jointly charged with an

offense, they shall be tried jointly. This rule is so designed as to
preclude a wasteful expenditure of judicial resources and to
promote an orderly and expeditious disposition of criminal
prosecutions.

XPN: The court, upon motion of the prosecutor or any of the

defendants, may order a separate trial for one or more accused
(Sec. 16, Rule 119).

NOTE: In the interest of justice, a separate trial may be granted

even after the prosecution has finished presenting its evidence
in chief(Joseph v. Villaluz, G.R. No. L-45911, April 11, 1979). If
a separate trial is granted, the testimony of one accused
imputing the crime to his co-accused is not admissible against
the latter. In joint trial, it would be admissible if the latter had an
opportunity for cross-examination.

REQUISITES BEFORE A TRIAL CAN BE SUSPENDED ON

ACCOUNT OF ABSENCE OF WITNESS

To justify delay or suspension of trial by reason of the absence

of a witness, the following must be present:

1. Witness is essential and appears to the court to be so;

NOTE: “Essential” means indispensable, necessary, or

important in the highest degree. (Riano, 2016)
2. His absence is brought by either of the following: a. His
whereabouts are unknown; or b. His whereabouts cannot be
determined by due diligence.

NOTE: A witness shall be considered unavailable even if his

whereabouts are known but his presence for the trial cannot be
obtained by due diligence. (Sec. 3 (b), Rule 119)

Effect of Absence of Witness

Any period of delay resulting from the absence or unavailability

of an essential witness shall be excluded in computing the time
within which trial must commence. (Sec. 3, Rule 119)

Appearance of material witness

Either party may, upon motion, secure an order from the court
for a material witness to post bail for such sum as maybe
deemed proper, if the court is satisfied upon either proof or oath
that a material witness will not testify when required (Sec. 14,
Rule 119). If the witness refuses to post bail, the court shall
commit him to prison until he compiles or is legally discharged
after his testimony has been taken. (Sec. 14, Rule 119)

Some rules on witness’ credibility

1. Affidavits, which are usually taken ex parte, are often

incomplete and inaccurate (Resayo v. People, 522 SCRA 391,
April 27, 2007).

2. Truth is established not by the number of witnesses but by

the quality of their testimonies (Ceniza-Manantan v. People,
531 SCRA 364, August 28, 2007).
Examination of defense witness vs. Examination of prosecution
witness

BEFORE TRIAL Examination of Defense

Witness Examination of Prosecution Witness

The accused may have his witness examined conditionally in

his behalf before trial upon motion with notice to all other
parties.
Conducted in the presence of the accused unless he waived his
right after reasonable notice.

GROUNDS
1.Witness is so sick to afford reasonable ground to believe that
he will not be able to attend the trial.
2.He resides more than 100 kilometers and has
1. The witness is too sick to appear at trial.
2. He has to leave the Philippines with no definite date of
return (Sec. 15, Rule 119). no means to attend the same.
3. Other similar circumstances exist that would make him
unavailable or prevent him from attending trial (Sec. 12, Rule
119).
4. May be made if the witness resides more than 100 km from
the place of trial (Secs. 13 and 15, Rule 119).

Conducted before any judge, member of bar in good standing

or before any inferior court. Conducted only before the judge or
the court where the case is pending. No right to cross examine.

Right to crossexamine.
Hence such statements of the prosecution witnesses may
thereafter be admissible in behalf of or against the accused.

TRIAL IN ABSENTIA
Sec. 14 (2), Art. III of the Constitution provides that trial may
proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is
unjustifiable (Parada v. Veneracion, A.M. No.RTJ-96-1353,
March 11, 1997).

Requisites of trial in absentia:

1. The accused has already been arraigned;

2. He has been duly notified of the trial; and

3. His failure to appear is unjustified (Sec. 14(2), Art. III, 1987

Constitution of the Philippines; Bernardo v. People, G.R. No.

166980, April 4, 2007). Effects of trial in absentia

The accused waives the right to present evidence and cross-

examine the witnesses against him. The accused’s waiver does
not mean, however, that the prosecution is deprived of the right
to require the presence of the accused for purposes of
identification by the witnesses which is vital for conviction of the
accused, except where he unqualifiedly admits in open court
after his arraignment that he is the person named as defendant
in the case on trial.

Under Sec. 14 (2), Art. III of the 1987 Constitution, “after

arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his
failure to appear is unjustifiable.”

The failure of the accused to appear before the court in spite of

notice has been considered a waiver of their right to be present
at their trial, and the inability of the court to notify them of the
subsequent hearings did not prevent it from continuing with
their trial. They were deemed to have received notice.
Thereafter, the trial court had the duty to rule on the evidence
presented by the prosecution against all the accused and to
render its judgment accordingly (Bernardo vs. People, G.R. No.
166980, April 4, 2007).

REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL

WITHIN THE PRESCRIBED PERIOD

If the accused is not brought to trial within the time limit

required by Sec. 1 (g), Rule 116, the information may be
dismissed on motion of the accused on the ground of denial of
his right to speedy trial (Sec. 9, Rule 117).

NOTE: The dismissal shall be subject to the rules on double

jeopardy (Ibid.).

Burden of proving the motion The accused has the burden of

proving the motion but the prosecution shall have the burden of
going forward with the evidence to establish the exclusion of
time under Sec. 3, Rule 117 (Ibid.).

Failure of the accused to move for dismissal prior to trial The

failure of the accused shall constitute a waiver of the right to
dismiss under Sec. 9, Rule 117.

REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME

A STATE WITNESS

State witness

He is one of two or more persons jointly charged with the

commission of a crime but who is discharged with his consent
as such accused so that he may be a witness for the State
(People v. Ferrer, G.R. No. 102062, March 14, 1996).

Requisites before an accused may become a State witness:

1. Two or more accused are jointly charged with the

commission of an offense;

2. The motion for discharge is filed by the prosecution before it

rests its case;

3. The prosecution is required to present evidence and the

sworn statement of each proposed state witness at a hearing in
support of the discharge;

4. The accused gives his consent to be a state witness; and

5. The trial court is satisfied that:

a. There is absolute necessity for the testimony of the
accused whose discharge is requested;
b. There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of
the said accused;
c. The testimony of said accused can be substantially
corroborated in its material points;
d. Said accused does not appear to be the most guilty; and
e. Said accused has not at any time been convicted of any
offense involving moral turpitude (Sec. 17, Rule 119).

EFFECTS OF DISCHARGE OF ACCUSED AS STATE

WITNESS
GR: 1. Discharge of accused operates as an acquittal and bar
to further prosecution for the same offense (Sec. 18, Rule 119);
2. Evidence adduced in support of the discharge shall
automatically form part of the trial (Sec. 17, Rule 119); and

3. If the court denies the motion to discharge the accused as

State witness, his sworn statement shall be inadmissible in
evidence (Sec. 17, Rule 119).

XPNs:
1. When the accused fails or refuses to testify against his co-
accused in accordance with his sworn statement constituting
the basis of his discharge(Sec. 18, Rule 119);
2. Failure to testify refers exclusively to defendant’s will or fault;
and
3. Where an accused who turns into a state witness on a
promise of immunity but later retracts and fails to keep his part
of the agreement, his confession made under such a promise
may be used against him (People v. Beberino, G.R. No. L-
23092, October 28, 1977).

NOTE: Discharge under this rule is only one of the modes to

be a State witness.

Other modes are:

1. The Witness Protection Program of RA 6981;

2. The power of the Ombudsman to grant immunity under Sec.

17, RA 6770;

3. Immunity under PD 749 or granting immunity from

prosecution to givers of bribes and other gifts and to their
accomplices in bribery and other graft cases against public
officers;
4. Immunity under EO 14-A or granting immunity from criminal
prosecution to any person who provides information or testifies
in any investigation conducted by Presidential Commission on
Good Governance (PCGG);

5. Immunity under the Comprehensive Dangerous Drugs Act of

2002, RA 9165; and

6. Immunity and Protection under the Human Security Act of

2007, RA 9372.

The discharge of an accused as a state witness is not

necessary before the prosecution is allowed to present him as a
prosecution witness.
As there is nothing in the rules that require that the accused be
discharged first as a state witness before he becomes a
prosecution witness. While it is true that an accused cannot be
made a hostile witness for the prosecution, for to do so would
compel him to be a witness against himself, he may, however,
testify against a co-defendant where he has agreed to do so,
with full knowledge of his right and the consequences of his
acts. There is a difference between testifying as state witness
and testifying as a co-accused. In the first, the proposed state
witness has to qualify as a witness for the state, after which he
is discharged as an accused and exempted from prosecution.
In the second, the witness remains an accused and can be
made liable should he be found guilty of the criminal offense
(People vs. Chaves, G.R. No. 131377, February 11, 2003).

Witness Protection Program vs. Sec. 17, Rule 119 of the Rules
of Court

Witness Protection Program

The offense in which the testimony is to be used is limited only
to grave felony under the RPC or its equivalent under special
law
Any member of the family of the person applying for admission
within the second civil degree of consanguinity or affinity is
subjected to threat of his life or bodily injury or there is a
likelihood that he will be killed, forced, intimidated, harassed or
corrupted to prevent him from testifying or to testify falsely or
evasively on account of his testimony.
The witness applying is not a law enforcement officer.
The immunity is granted by DOJ
The witness is automatically entitled to certain rights and
benefits
The witness need not be charged elsewhere
No information may thus be filed against the witness

Sec. 17, Rule 119 of the Rules of Court

It has no qualification. It applies to all felonies

There is no such limitation. One can be discharged as a
witness whether he is a law enforcement officer or not.
The court grants the immunity
The witness so discharged must still apply for the enjoyment of
said rights and benefits in the DOJ.
He is charged in court as one of the accused as stated in the
information.
The charges against him shall be dropped and the same
operates as an acquittal.

NOTE: Both require that there is absolute necessity for the

testimony and that there is no other direct evidence available
for the prosecution of the offense committed.
DEMURRER TO EVIDENCE

It is an objection by one of the parties in an action to the effect

that the evidence which his adversary produced is insufficient in
point of law to make out a case or sustain the issue (Nicolas v.
Sandiganbayan, G.R. Nos. 175930-31, February 11, 2008).

NOTE: A demurrer to evidence is actually a motion to dismiss

that is filed by the accused after the prosecution has rested its
case.

To be considered sufficient, the evidence must prove:

1. The commission of the crime; and

2. The precise degree of participation therein by the accused

(Singian, Jr. v. Sandiganbayan, G.R. No. 195011-19,
September 30, 2013).

Rule on demurrer to evidence

ow made
1. Court on its own initiative; or
2. Upon filing of the accused for demurrer of evidence: a. With
leave of court; or b. Without leave of court.
When made
After the prosecution rests its case.
Ground Insufficiency of evidence
Effect The court may dismiss the case (Sec. 23, Rule 119).

NOTE: Generally, in criminal cases, the grant of a demurrer is

tantamount to an acquittal and the dismissal order may not be
appealed because this would place the accused in double
jeopardy. Although the dismissal order is not subject to appeal,
it is still reviewable but only through certiorari under Rule 65 of
the Rules of Court. For the writ to issue, the trial court must be
shown to have acted with grave abuse of discretion amounting
to lack or excess of jurisdiction such as where the prosecution
was denied the opportunity to present its case or where the trial
was a sham thus rendering the assailed judgment void. The
burden is on the petitioner to clearly demonstrate that the trial
court blatantly abused its authority to a point so grave as to
deprive it of its very power to dispense justice (People v.
Sandiganbayan, G.R. No. 1754504, March 21, 2011).

Effect of filing a demurrer with leave of court vs. Filing a

demurrer without leave Demurrer

With Leave of Court Demurrer

If leave of court is If demurrer to denied, the accused may

proceed with the presentation of his evidence. If demurer is
granted, the case is dismissed and the effect is an acquittal. If
demurer is granted, the case is dismissed and the effect is an
acquittal. The motion for leave of court to file a demurrer to
evidence shall specifically state its grounds and shall be filed
within a nonextendible period of 5 days after the prosecution
rests its case. The prosecution may oppose the motion within a
nonextendible period of 5 days from its receipt. If leave of court
is granted, the accused may file the demurrer to evidence
within 10 days. The prosecution may however, oppose the
demurrer to evidence within a non-extendible period of 10 days
from the receipt of the demurrer (Sec. 23, Rule 119).

The purpose of leave of court is to determine whether or not the

defendant in a criminal case has filed the demurrer merely to
stall the proceedings(People v. Mahinay, G.R. No. 109613, July
17, 1995).

Filing a demurrer without leave Demurrer

If demurrer to evidence is denied, it is tantamount to a waiver of
the accused’s right to present evidence and as a consequence
the case will be submitted for judgment on the basis of the
evidence for the prosecution. If demurer is granted, the case is
dismissed and the effect is an acquittal.

Demurrer to evidence vs. Motion to dismiss

Demurrer to Evidence

Assumes that the prosecution has It is based on the denial of

the already rested its case filed by the accused with or without
leave of court and submits the case for judgment on the
evidence of the prosecution.

It may be filed in good faith with or without leave of court.

Motion to Dismiss

accused’s right to speedy trial characterized by unreasonable,

vexatious and oppressive delay without fault of the accused, or
by unjustified statements that unreasonably prolonged the trial.
It is filed without leave of court and before the prosecution has
rested its case.
NOTE: In order to determine whether the pleading filed is
demurrer to evidence or a motion to dismiss,

the Court must consider:

(1) the allegations in it made in good faith;

(2) the stage of proceeding at which it is filed; and

(3) the primary objective of the party filing it (Cabador v People,

GR No. 186001, October 2, 2009).