Thursday, January 21, 2010

Legal lessons from the Maguindanao massacre (02): bail

The court is now hearing the petition for bail of principal suspect Datu Unsay. Some of you may be wondering as to why the court is conducting hearings on the petition for bail while the main issues of the case are seemingly being set aside.

Filing of a petition for bail is standard for defense lawyers

The defense lawyers filed the petition for bail claiming that the evidence of guilt is weak. For the millions of Filipinos who are following the developments of this case on television and the Internet, this claim seems highly incredible since the evidence of guilt appears to be stronger than the steel on a back hoe. But the filing of a petition for bail is a standard tactic of defense lawyers. Let me explain.

This kind of petition is allowed under the Rules on Criminal Procedure and is in keeping with the Constitutional presumption of innocence. Once such a petition has been filed, the prosecution is required to prove that indeed evidence of guilt is strong.
After the hearings, the judge can deny or grant the petition for bail.

What happens if the petition for bail is granted?

If you remember the kidnapping case involving actor/congressman Dennis Roldan, the judge ruled that the evidence of guilt was weak. He was allowed to post bail.

If the petition for bail is granted, the case will then proceed as in the normal procedure:

  • The prosecution will present evidence to prove the guilt of the accused. All the testimonies and evidences presented during the hearings of the petition for bail will become part of the hearing on the main issues. The witnesses who testified during the hearings for the petition for bail will not be required to appear and testify again during the hearings on the main issues of the case. However, since the petition for bail has been granted, the prosecution is put on notice that it should review its case and strengthen its evidence.
  • After the prosecution has presented its evidence, the accused may then present evidence of his innocence. (Before presenting his evidence, he can with the leave or consent of the court, submit what is called a demurrer to evidence. This is essentially a motion to dismiss the case. If the court grants the demurrer, the case is dismissed and the accused is set free. If the court denies the demurrer, then the accused has to present his evidence.)
For the accused and his lawyers therefore, filing a petition for bail is advantageous for at least two reasons:
  • If the petition is granted, he can be released from custody and enjoy his liberty while the case is going on; and
  • He can know whether in the mind of the judge the evidence of his guilt is strong or not. If the judge denies his petition, he has the time to strengthen his defense. He may even consider a plea bargain.
Let’s discuss some practical matters about bail:

[1] “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 as required under the conditions hereinafter specified.

[2] The information filed by the fiscal contains at the lower portion a notation on the bail recommended. The bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. The legal term is “to post bail” but “to pay the bail” is the layman’s expression.

No bail necessary for cases under the Rules on Summary Procedure (for example, BP 22)

For cases falling under the Rules on Summary Procedure, the court does not issue a warrant of arrest. Thus the posting of bail is not necessary (even if the information states a recommended bail). For example, persons accused of violation of BP 22 (bouncing checks) do not have to post bail. However, the court may issue a warrant of arrest and require the posting of bail if the accused fails to appear during the hearings.

Release on recognizance

[3] “ROR” (Release on recognizance) means that the accused will not post the bail in money or security; instead, the accused will be released to the custody of a government official like barangay officials or previously, in the case of minors, of parents. The person to whom custody is entrusted will guarantee that the accused will be present during the hearings.

Motion to reduce bail

[4] Sometimes, the accused and/or his family cannot afford to post the recommended bail. The usual procedure is to file what is called “Motion to reduce bail”. For example, if the recommended bail is sixty thousand pesos, the accused may ask the court to reduce the bail to around twenty five thousand pesos. The court may grant the motion to reduce bail but then it requires that the bail be paid in cash.

Seeking the help of bail bondsman or “pyansador”

[5] If you know someone who has been arrested but who cannot afford to pay the bail, you can ask the clerks and security guards at fiscal’s offices and/or the Hall of Justice as to who the bail bondsmen (“pyansador”) are. These are men and women who make a living out of helping persons accused of a crime to avail of the services of surety companies. These companies will pay the recommended bail and the accused has to pay only the premium. The “pyansador” will work on all the papers. (Sometimes, the court staff or the police officers serving the warrant have contacts with the “psyansador”. Once the accused has been arrested, the court staff or the police officers will tell him that they can help work on their release. Needless to say, these practices of court staff and police officers are against Civil Service rules.)

Pictures needed

[6] The accused, in working on his bail, has to provide pictures of himself (front, left and right profiles) which will be attached to the documents. There are photographers who hang around fiscal’s offices and Halls of Justice, waiting for clients. The “pyansador” also has contacts with photographers.

If the accused has not yet been arrested and is working on the posting of his bail, he can go to a photo studio and ask that his pictures be taken. If he tells the photo studio that he needs the pictures for posting bail, the studio already knows what kind of pictures to take.

Posting bail to avoid being arrested; how to prevent being harassed

[7] To avoid being arrested on the basis of a warrant of arrest, the accused posts the recommended bail through his lawyer or relatives. In the meantime, the accused hides or makes himself scarce. Once the bail has been posted, the accused should always bring with him proof of payment of bail. This way, he can avoid being harassed by the police. For the same reason, if the accused has been arrested and then posts bail, he should carry with him a copy of the release order.

What to do if someone borrows money from you to post the bail

[8] If an accused approaches you for help in paying his bail and you want to make sure that the money is returned to you eventually, ask that your name be indicated in the official receipt as the payor of the bail.

Bail is cancelled if accused is absent during the hearings; motion to lift the warrant of arrest and to reinstate bail

[9] If the accused who has posted bail fails to appear at a hearing, then the court may order that his bail be forfeited. The court also issues what is called a bench warrant” for the arrest of the accused. If the accused has a valid reason for his absence (like sickness or he was not informed of the hearing), he may file a motion to lift the warrant of arrest and to reinstate bail.

But if the accused does not have any valid reason for being absent during the hearings, he will be forced to post bail again.

Posted below are the complete provisions of “The Revised Rules of Criminal Procedure” on bail.

Rule 114 – Bail

Section 1. Bail defined. – 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 as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.

Sec. 2. Conditions of the bail; requirements. – All kinds of bail are subject to the following conditions:
(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it;

(b) The accused shall appear before the proper court whenever required by the court of these Rules;

(c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for execution of the final judgment.
The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.

Sec. 3. No release or transfer except on court order or bail. – No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

Sec. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment.

Sec. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.

Sec. 6. Capital offense defined. – A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death.

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution.

Sec. 8. Burden of proof in bail application. – At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.

Sec. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:
(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required.

Sec. 10. Corporate surety. – Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors.

Sec. 11. Property bond, how posted. – A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned.

Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention.

Sec. 12. Qualifications of sureties in property bond. – The qualifications of sureties in a property bond shall be as follows:
(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the amount of undertaking;
(c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded.
In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution.

Sec. 13. Justification of sureties. – Every surety shall justify by affidavit taken before the judge that he possesses the qualification prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified.

Sec. 14. Deposit of cash as bail. – The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit.

Sec. 15. Recognizance. – Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person.

Sec. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be required when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.

Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein.

(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal.

Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.

Sec. 18. Notice of application to prosecutor. – In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation.

Sec. 19. Release on bail. – The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule.

When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed.

Sec. 20. Increase or reduction of bail. – After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody.

Sec. 21. Forfeiture of bail. – When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-production; and
(b) explain why the accused did not appear before the court when first required to do so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted.

Sec. 22. Cancellation of bail. – Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on the bail.

Sec. 23. Arrest of accused out on bail. – For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion.

An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.

Sec. 24. No bail after final judgment; exception. – No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.

Sec. 25. Court supervision of detainees. – The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees.

In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein.

A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information.

Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

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