Legal Procedures 12: Trial procedure in criminal cases

Update as of April 29, 2018: (A) Revised Guidelines for Continuous Trial of Criminal Cases A.M. No. 15-06-10-SC; (B) “Judicial Affidavit Rule A.M. No. 12-8-8-SC”; and (C) “Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and Speedy Trial” A.M. No. 12-11-2-SC (March 18, 2014)

1. Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

2. Tip for new bar passers

If you are a new bar passer who does not know courtroom procedures, you should inform the judge, “Your Honor please, I am a new bar passer, and I will appreciate any help that this Court can extend to me.” The judge will not scold you but will extend all the help you need. Even your opposing counsel (and other lawyers in the courtroom) will help you. It’s a little bit embarrassing saying this in front of your client, but it will help prevent you from making any mistake.

As a law student, you should not only rely on your subjects like Practice Court, Trial Techniques, or Evidence. You should watch as many courtroom hearings as you can. If your law school has a legal clinic, you can volunteer there and gain valuable experience in handling cases.

3. Interpretation into English of the testimonies of witnesses

English is the language of the law and the courtroom. When a witness testifies in Filipino or any dialect, a court staff interprets what was said into English. The lawyer presenting the witness or the opposing counsel can propose what the correct interpretation is. If what is said in Filipino or any dialect cannot be interpreted appropriately, or if it is important to retain the testimony as it is, the lawyer can manifest, “Your Honor, please, may we request that the vernacular be reflected in the record.”

4.Transcript of stenographic notes

Lawyers need the transcripts of stenographic notes (TSN) to prepare for their examination of witnesses and for their pleadings (memorandum, demurrer, appeal, etc). With most courts, the stenographer prepares the TSN before the next scheduled hearing. Before the hearing starts or any day beforehand, the lawyer usually asks his client to pay for and get the TSN. It usually costs ten to fifteen pesos per page.

Some stenographers in order to maximize their earnings type the transcripts with two inch margins all sides and in double or even triple space! In one major city here in Metro Manila, stenographers will not prepare the TSN until and unless they are paid beforehand. They estimate from their notes how many pages the TSN will be and they charge accordingly. One paralegal I know was charged 500 pesos by the stenographer; when he got the TSN, it was only two pages long. These unscrupulous practices of stenographers should be reported to the Office of the Court Administrator of the Supreme Court.

5. Trial lawyers and “lagare”

Some trial lawyers practice what is called “lagare”. For example, they schedule the hearings of two or more cases held in the same town or city in the same morning or afternoon session. They instruct their clients to inform the judge, when the case is called, that their lawyer is in another courtroom. The case is then set for a second or third call. After the lawyer finishes with the hearing in one case, he or she then goes to the other hearing. Judges allow this since they recognize that lawyers have to earn a living.

6. Court procedure when a child is the victim, the accused or a witness

The “Supreme Court Rule on Examination of a Child Witness” governs the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It applies in all criminal proceedings and non-criminal proceedings involving child witnesses.

The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. Section 25 of the Rule provides for the giving of the testimony via live-link television. Some courts (called “e-courts”) are equipped with video conferencing facilities. Please read the “Revised Rule on Children in Conflict with the Law”.

7. Alternative Dispute Resolution of criminal cases

Rather than going through a full-blown trial, the contending parties can choose to go through “Alternative Dispute Resolution” (ADR) which is part of “Court-Annexed Mediation” (CAM). In criminal cases, the civil aspect or claim for damages for violation of BP 22 (bounced checks), simple theft, libel, and estafa can now be mediated. ADR is cost-effective as it takes merely ten percent of total duration of litigation saving time and resources of litigants and courts and preserves good will between the parties. When the civil aspect of the case is successfully mediated, the criminal aspect can then be dismissed.

8. If the accused escapes or could not be located during the trial, the court orders the confiscation of the bond, and the case is then archived so that the prescriptive period won’t run. In case the accused is bonded, the court orders the bail bondsmen to produce the body of the accused (that is, to bring the accused to court). The trial proceeds in absentia if the accused was validly arraigned.

9. Benefits under the Witness Protection Program

Under the Witness Protection program (RA 6981), a witness to a grave felony may be entitled to:

• relocation
• change of personal identity
• a means of livelihood
• financial assistance
• protection from being removed or demoted in his work, etc.

In case of death or permanent incapacity due to his being a witness, his heirs get burial benefits, and his dependent children get free education up to college.

10. Benefits for victims of violent crimes, unjustly accused or detained, etc.

Under R.A. 7309, the following may ask for compensation with the Department of Justice Board of Claims: victims of violent crimes; a person unjustly detained and released without being charged; any victim of arbitrary or illegal detention; any person who was unjustly accused, convicted and imprisoned but subsequently acquitted and released.

11. When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there is good cause to detain him. The court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Rule 119, Section 11)

Trial (Rule 119, Revised Rules of Criminal Procedure)

Section 1. Time to prepare for trial. – After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order.

Sec. 2. Continuous trial until terminated; postponements. – Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trail on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court.

The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial.

Sec. 3. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence:

(a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following:

(1) Delay resulting from an examination of the physical and mental condition of the accused;
(2) Delay resulting from proceedings with respect to other criminal charges against the accused;
(3) Delay resulting from extraordinary remedies against interlocutory orders;
(4) Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30) days;
(5) Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts;
(6) Delay resulting from a finding of existence of a prejudicial question; and
(7) Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement.

(b) Any period of delay resulting from the absence or unavailability of an essential witness.

For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence.

(c) Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial.

(d) 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.

(e) A reasonable period of delay when the accused is joined for trial with a co-accused 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.

(f) 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. 4. Factors for granting continuance. – The following factors, among others, shall be considered by a court in determining whether to grant a continuance under section 3(f) of this Rule.

(a) Whether or not the failure to grant a continuance in the proceeding would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; and

(b) Whether or not the case taken 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.

In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion of the court’s calendar or lack of diligent preparation or failure to obtain available witnesses on the part of the prosecutor.

Sec. 5. Time limit following an order for new trial. – If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend but not to exceed one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred eighty (180) days from notice of said order for new trial.

Sec. 6. Extended time limit. - Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-month period, the time limit shall be eighty (80) days.

Sec. 7. Public attorney’s duties where accused is imprisoned. – If the public attorney assigned to defend a person charged with a crime knows that he latter is preventively detained, either because he is charged with a bailable crime but has no means to post bail, or, is charged with a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do the following:

(a) Shall 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 advise the prisoner of his right and demand trial.

(b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at anytime 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.

(c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial.

(d) When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purpose of trial, the prisoner shall be made available accordingly.

Sec. 8. Sanctions. – In any case in which private counsel for the accused, the public attorney, or the prosecutor:

(a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial;

(b) Files a motion solely for delay which he knows is totally frivolous and without merit;

(c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or

(d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows:

(1) By imposing on a counsel privately retained in connection with the defense o fan accused, a fine not exceeding twenty thousand pesos (P20,000.00);
(2) By imposing on any appointed counsel de officio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and
(3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these rules.

Sec. 9. Remedy where accused is not brought to trial within the time limit. – If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this Rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have 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 section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy.

Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section.

Sec. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. – No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Section 14(2), Article III, of the 1987 Constitution.

Sec. 11. Order of trial. – The trial shall proceed in the following order:

(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.

(b) The accused may present evidence to prove his defense and damages, if any, arising, from the issuance of a provisional remedy in the case.

(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.

(d) Upon admission of 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.

(e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified.

Sec. 12. Application for examination of witness for accused before trial. – When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require.

Sec. 13. Examination of defense witness; how made. – If the court is satisfied that the examination of a witness for the accused is necessary, an order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken.

Sec. 14. Bail to secure appearance of material witness. – When the court is satisfied, upon proof of oath, that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken.

Sec. 15. Examination of witness for the prosecution.– When it is satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, of has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.

Sec. 16. Trial of several accused. – When two or more accused are jointly charged with an offense, they shall be tried jointly unless the court, in its discretion and upon motion of the prosecutor or any accused, orders separate trial for one or more accused.

Sec. 17. Discharge of accused to be state witness. – When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the 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 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.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.

Sec. 18. Discharge of accused operates as acquittal. – The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge.

Sec. 19. When mistake has been made in charging the proper offense. – When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.

Sec. 20. Appointment of acting prosecutor. – When a prosecutor, his assistant or deputy is disqualified to act due to any of the grounds stated in section 1 of Rule 137 or for any other reason, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor.

Sec. 21. Exclusion of the public. – The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties.

Sec. 22. Consolidation of trials of related offenses. – Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the discretion of the court.

Sec. 23. Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.

Sec. 24. Reopening. – At any time before finality of the 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 thirty (30) days from the order granting it.

Legal Procedures 11: Arraignment and pre-trial

Notes: [1] Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[2] If the accused appears without a lawyer during arraignment, the court appoints a “counsel de officio” from among the lawyers present in the courtroom to assist the accused. Any lawyer the judge chooses cannot refuse since the appointment as “counsel de officio” is for purposes of arraignment only.

Veteran lawyers always manifest for example, “Respectfully appearing as counsel de officio for purposes of arraignment only.” For new bar passers who wish to gain trial experience however, it is a good idea to take on clients on a de officio basis not only for the arraignment but for the whole trial.

The court staff records the name of the “counsel de officio” and asks that counsel to sign. This is to prevent the accused from later on claiming that there was no arraignment and that therefore the court has no jurisdiction..

[3] The information is read to the accused in a language understood by him. The accused through  counsel of course has to tell to the court beforehand that he or she does not understand English and that the reading should be made in the dialect he or she understands.

(In one arraignment I witnessed in a Quezon City court, I found out that there are several variants of the Ilocano dialect. The court had a difficult time looking for someone who could translate the information into the kind of Ilocano that the accused could understand.)

[4] The reading of the information may also be waived. One reason for the waiver is because defense lawyers do not want their clients to be subjected to the emotional trauma of being arraigned. In one arraignment in a Pasig City MTC many years ago, I heard an accused say that while she was being arraigned, “Parang sinisilaban ang pwet ko!”

[5] During the arraignment, the accused may choose not to enter any plea, whether “guilty” or not guilty”. The judge will then direct that a plea of “not guilty” be entered for the accused. One reason for not entering any plea is for the accused to later on question the jurisdiction of the court over him.

[6] An improvident plea of guilt may later on be withdrawn.

[7] If the accused cannot post bail, he should invoke his Constitutional right to a speedy trial immediately after he is arraigned.

[8] The judge may order that the marking of documentary documents be done in a separate session with only the opposing counsels, the branch clerk of court and the stenographer present. This saves the time of the court especially when there are a lot of cases calendared for that day or when there are numerous documents to be marked.

[9] During the pre-trial conference, so as not to deface the original documents, the opposing counsels may ask each other to stipulate that the photocopy is a faithful reproduction of the original. The branch clerk then marks the photocopy.

[10] Sometimes, instead of proceeding with the marking of evidences and the making of stipulations and admissions, the court orders that the case be brought to mediation. This again saves time and effort; if the civil aspect of the case is mediated successfully, the criminal aspect may then be dismissed.

[11] Some defense lawyers who wish to expedite the pre-trial conference simply state, for example, “The defense will only stipulate as to the jurisdiction of this court and the identity of the accused”. The phrase “identity of the accused” means that the person being arraigned and the person named in the information are one and the same. Please read the Supreme Court ruling in PS Bank vs Bermoy, GR no. 151912, September 26, 2005.

Arraignment and plea (Rule 116, Revised Rules of Criminal Procedure)

Section 1. Arraignment and plea; how made. - (a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings.

(c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.

(d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him.

(e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment.

(f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone.

(g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill or particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

Sec. 2. Plea of guilty to a lesser offense. – At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.

Sec. 3. Plea of guilty to capital offense; reception of evidence. – When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf.

Sec. 4. Plea of guilty to non-capital offense; reception of evidence, discretionary. – When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed.

Sec. 5. Withdrawal of improvident plea of guilty. – At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty.

Sec. 6. Duty of court to inform accused of his right to counsel. – Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de officio to defend him.

Sec. 7. Appointment of counsel de officio. – The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de officio such members of the bar in good standing who, by reason of their experience and ability, can competently defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused.

Sec. 8. Time for counsel de officio to prepare for arraignment. – Whenever a counsel de office is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

Sec. 9. Bill of particulars. – The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired.

Sec. 10. Production or inspection of material evidence in possession of prosecution. – Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, object, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies.

Sec. 11. Suspension of arraignment. – Upon motion by the proper party, the arraignment shall be suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.

Pre-trial (Rule 118, Revised Rules of Criminal Procedure)

Section 1. Pre-trial; mandatory in criminal cases. – In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (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, order a pre-trial conference to consider the following:

(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

Sec. 2. Pre-trial agreement. – All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court.

Sec. 3. Non-appearance at pre-trial conference. – If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties.

Sec. 4. Pre-trial order. – After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course f the action during the trial, unless modified by the court to prevent manifest injustice.

Legal Procedures 10: Pleadings and motions before arraignment; motion for judicial determination of probable cause

(Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.)

1. Petition for review - filed with the Department of Justice, the Regional State Prosecutor’s office, or the Office of the President, if the prosecutor has committed manifest error or grave abuse of discretion during the preliminary investigation. Period of suspension of arraignment must not exceed sixty days from the filing of the petition for review.

2. Motion for reinvestigation - alleges defects or irregularities in the preliminary investigation, requests that the findings be invalidated and that another investigation be conducted to determine if there is probable cause.

3. Motion for a bill of particulars (Rule 116, Section 10) - specifies alleged defects of the complaint or information and requests details that will enable the accused to plead properly to the charge against him and to adequately prepare for trial.

4. Motion for suspension of arraignment - may be filed on the ground that the accused appears to be suffering from an unsound mental condition that effectively renders him unable to fully understand the charge against him and to plead intelligently. In such a case, the court orders a mental examination of the accused and if necessary, his confinement. Another ground is when the court finds the existence of a valid prejudicial question (for example, a void first marriage in bigamy cases).

5. Motion to quash the information -

(a) The accused has been previously convicted or in jeopardy of being convicted, or has been acquitted of the offense charged.

(b) The criminal action or liability has already prescribed.

(c) The facts charged do not constitute an offense.

(d) The court trying the case has no jurisdiction over the case or over the person of the accused.

(e) The officer who filed the information had no authority to do so

(f)The information contains statements which constitute a legal excuse or justification

(g) It does not conform substantially to the prescribed form.

(h) More than one offense is charged (except in cases where the law prescribes a single punishment for various offenses).

6. Production or inspection of material evidence in possession of prosecution, police or other law investigating agencies in order to prevent surprise, suppression, or alteration (Sec. 10, Rule 116).

7. Motion to quash a search warrant or to suppress evidence (Section 14 of Rule 126) - “A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.”

(If I remember correctly, Atty. Oliver Lozano many years ago defended an alleged drug lord by filing a motion to suppress the State’s evidence, a shipload of drugs. Atty. Lozano argued that there was no evidence linking the boatload of drugs to the accused, that the ship was registered in another person’s name, etc. The judge agreed with this contention and dismissed the complaint without a full-blown trial. I remember reading a newspaper column by retired SC Justice Isagani Cruz that criticized the dismissal of the case.)

8. Motion for judicial determination of probable cause: Please read the Supreme Court decision in “Dio v. Court of Appeals” G.R. No. 178947, June 26, 2013. The pertinent provisions of the decision are posted below:

Actions that a judge may take once the information is filed with the court and after evaluating the evidence on record: (a) issue a warrant of arrest, if there is probable cause; (b) immediately dismiss the case, if the evidence on record clearly fails to establish probable cause; or (c) order the prosecutor to submit additional evidence, if the existence of probable cause is doubtful.

(a) Determination of probable cause may be either executive or judicial.

Executive determination of probable cause is made by the public prosecutor, during a preliminary investigation. The prosecutor has broad discretion to determine whether probable cause exists for filing a criminal information in court.

Whether or not the prosecutor has correctly ascertained that probable cause exists is a matter that the trial court itself does not and may not be compelled to pass upon.

Judicial determination of probable cause is made by the judge to find out whether a warrant of arrest should be issued against the accused. The judge must satisfy himself or herself that, on the basis of the evidence submitted, the accused must be placed under custody in order not to frustrate the ends of justice.

If the judge, therefore, finds no probable cause, he or she cannot be forced to issue the arrest warrant.

(b) Caution for defense lawyers in filing a motion for judicial determination of probable cause: the judge is already duty-bound upon the filing of the information to determine the existence or non-existence of probable cause for the arrest of the accused. The filing of a motion for judicial determination of probable cause becomes unnecessary, if not deliberately attempts to cut short the process by asking the judge to weigh in on the evidence without a full- blown trial.

(c) A judge may immediately dismiss a case if the evidence on record clearly fails to establish probable cause. A judge’s determination of probable cause is generally confined to the limited purpose of issuing arrest warrants. But Section 5(a), Rule 112 of the Revised Rules of Criminal Procedure explicitly states that a judge may immediately dismiss a case if the evidence on record clearly fails to establish probable cause.

(d) Caution for judges: So as not to transgress the public prosecutor’s authority, the judge’s dismissal of a case must be done only in clear-cut cases when the evidence on record plainly fails to establish probable cause — that is, when the records readily show uncontroverted, and thus, established facts that unmistakably negate the existence of the elements of the crime charged.

Legal Procedures 08: Rights of the accused

Notes: [1] Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[2] If the accused cannot afford to post bail, he must invoke his Constitutional right to a speedy trial. The court is then obligated to hold hearings at the most expeditious schedule. The accused can ask for the dismissal of the case on the merits if his or her right to a speedy trial is violated. An example of violation of the right to a speedy trial: the private complainant has been absent during the hearings for three or more times despite being notified.

Notice of the hearings can be given in open court or by registered mail. If the calendar of cases posted outside the courtroom contains the annotation “NR” or “No ret,” this means “No return” or that the return card of the registered mail has not been received by the court staff. If any party is absent because he or she has not been notified of the hearing, then it is reset to another date.

[3] The term “dismissal on the merits” means that the case cannot be re-filed anymore. It is different from a “provisional dismissal” where the case records are sent to the archives and hearings are suspended. For cases under the jurisdiction of the Regional Trial Court, the case can be dismissed on the merits if the complainant does not ask for the resumption of the hearings within two years from the time the case was provisionally dismissed. (In civil cases, the term is “dismissal with prejudice.”)

Most judges and fiscals (public prosecutors) are reluctant to grant or agree with the motion of the accused for a dismissal based on the violation of the Constitutional right to a speedy trial. They would rather prefer a provisional dismissal. For fiscals, a dismissal based on the Constitutional right to a speedy trial is a stain on the performance of their duties.

Before judges grant a provisional dismissal, they instruct the defense counsel (technically called as “counsel de parte”) to explain to the accused that the case can be revived within a certain time period.

If the accused has posted bail (or if no bail has been required as in cases falling under the Rules on Summary Procedure) and the private complainant has been absent for several times, the case can be dismissed on the ground of “failure to prosecute”.

[4] Under Republic Act 7438 “Rights of Person Under Custodial Investigation”, custodial investigation includes the practice of police officers of “inviting” persons for questioning in connection with an offense. It provides penalties for any public officer or employee who violates the rights of persons arrested, detained or under custodial investigation.

[5] Please read Republic Act 8493 “Speedy Trial Act of 1998”. Selected provisions are posted below.

Rights of the accused (Rule 115, Revised Rules of Criminal Procedure)
Section 1. Rights of accused at trial. – In all criminal prosecutions, the accused shall be entitled to the following rights:

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b) To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.

(e) To be exempt from being compelled to be a witness against himself.

(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law.

Selected provisions of the Speedy Trial Act of 1998

Time limit for trial - In criminal cases involving per-sons charged of a crime (except for those falling under the Rules on Summary procedure) the judge shall after consultation with the public prosecutor and counsel for the accused, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as authorized by the Chief Justice of the Supreme Court.

Time limit between filing of information and arraignment, and between arraignment and the trial - the arraignment shall be held within thirty (30) days from the filing of the information, or from the date the accused has appeared before the judge or court in which the charge is pending, whichever date last occurs.

Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence thirty (30) days from arraignment as fixed by the court.

If the accused pleads not guilty to the crime charged, he shall state whether he inter-poses 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.

Time limit following an order for new trial - the trial shall commence within thirty days from the date the order for new trial becomes final, except that the court retrying the case may extend such period but in any case shall not exceed one hundred eighty (180) days from the date the order for new trial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within thirty (30) days impractical.

Legal Procedures 07: Search and seizure

Notes: [1] Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[2] Checkpoints are valid for as long as they are limited to a visual search. The vehicle must not be subjected to search; the occupants must not be subjected to a bodily search. (Valmonte vs. De Villa)

[3] A buybust is an entrapment operation made by police authorities against drug pushers.

[4] A motion to quash a search warrant and/or to suppress any evidence obtained thereof may be filed in and acted upon only by the court where the case has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. (Section 14, Rule 126 of the Revised Rules of Criminal Procedure)

[5] There are several settled exceptions to the rule on a warrantless search:

• a search incidental to a lawful arrest;
• a search on a moving vehicle;
• seizure of evidence in plain view;
• when there is consent given by the person searched.

As an incident of a lawful arrest, a warrantless search is subject to the following: (a) the arrest must be lawful; (b) the search and seizure must be contemporaneous with the arrest; and (c) it must be within a permissible area of search.

A search done when there is consent is subject to these requisites: (a) there is a right; (b) there is knowledge of the existence of such right; and (c) there must be intention to waive the right.

Search and Seizure (Rule 126, Revised Rules of Criminal Procedure)

Section 1. Search warrant defined. – A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

Sec. 2. Court where application for search warrant shall be filed. – An application for search warrant shall be filed with the following:

(a) Any court within whose territorial jurisdiction a crime was committed.

(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

Sec. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

Sec. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Sec. 5. Examination of complainant; record. – The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.

Sec. 6. Issuance and form of search warrant. – If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.

Sec. 7. Right to break door or window to effect search. – The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein.

Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

Sec. 9. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.

Sec. 10. Validity of search warrant. – A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.

Sec. 11. Receipt for the property seized. – The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. – (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

(c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

Sec. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. – A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

Legal Procedures 06: Arrest and bail

Notes: [1] Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[2] Please read the related post “Legal lessons from the Maguindanao massacre (02): bail” where I discussed the practical aspects of bail like motion to reduce bail, pictures, seeking the help of bail bondsmen or “pyansador,” what to do if someone borrows money from you to pay for bail, etc.

[3] The authorities —police, NBI, etc.— have ten days from issuance of the warrant within which to arrest the accused. If no arrest is made within that period of time, the reason must be stated in a report ("return") to the judge.The court may then issue an alias warrant that is valid until recalled.

Update as of June 30, 2014 A.M. No. 12-11-2-SC (March 18, 2014) “Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and Speedy Trial” The order fixing the amount of bail cannot be appealed. (Sec. 4) Bail in offenses punishable by death, reclusion perpetua, or life imprisonment (Sec. 6): Hearing is summary in nature; the prosecution must show that the evidence of guilt is strong. The accused may submit affidavits of witnesses. The prosecution may (1) examine its witnesses on direct or (2) adopt the affidavits they executed during the preliminary investigation as their direct testimonies. The court must examine the witnesses on their direct testimonies or affidavits to ascertain if the evidence of guilt of the accused is strong. The court’s questions need not follow any particular order and may shift from one witness to another. The court must then allow counsels from both sides to examine the witnesses as well. The court must hear afterwards the oral arguments of the parties. Within 48 hours after the hearing, the court must issue an order containing a brief summary of the evidence presented before it, followed by its conclusion of whether or not the evidence of guilt is strong. This conclusion must not be regarded as a pre-judgment on the merits of the case, which will be determined only after a full-blown trial.

[4] Officers of the law arresting someone by virtue of a warrant need not have the warrant with them when making the arrest.

[5] If the private complainant executes an affidavit of desistance before the arraignment, the public prosecutor files a motion to withdraw the information. The court recalls the warrant or orders the release of the accused.

[6] A “buybust” operation is an entrapment procedure conducted by the police against drug pushers, who can be arrested on the spot and then searched, even without a warrant.

[7] If the recommended bail is too high, the accused may file a “Motion To Reduce Bail.” If granted, the court requires, however, the posting of cash bail. If the accused does not have a lawyer, he can file the motion by himself. He can ask around the Hall of Justice for anyone who knows the format of the motion and who can help him file it.

[8] Please read the history of the Miranda warning or the Miranda rights. The legality of an arrest can be questioned if the police did not observe the Miranda rights of an accused. These right are enshrined in our 1987 Constitution.

Arrest (Rule 113, The Revised Rules of Criminal Procedure)

Section 1. Definition of arrest. – Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

Sec. 2. Arrest; how made. – An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.

Sec. 3. Duty of arresting officer. – It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.

Sec. 4. Execution of warrant. – The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reason therefore.

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

Sec. 6. Time of making arrest. – An arrest may be made on any day and at any time of the day or night.

Sec. 7. Method of arrest by officer by virtue of warrant. – When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

Sec. 8. Method of arrest by officer without warrant. – When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.

Sec. 9. Method of arrest by private person. – When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the case of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest.

Sec. 10. Officer may summon assistance. – An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself.

Sec. 11. Right of officer to break into building or enclosure. – An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose.

Sec. 12. Right to break out from building or enclosure. – Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself.

Sec. 13. Arrest after escape or rescue. – If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines.

Sec. 14. Right of attorney or relative to visit person arrested. – Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.

Bail (Rule 114, The Revised Rules of Criminal Procedure)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 ged 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. (Note: The death penalty has already been abolished.)

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.