Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y.

2017-2018 1

Note: Comparison and marking of the documentary exhibits

done before the Branch Clerk of Court; Pre-trial
These are the Crim Pro Recitation Questions by Atty. Soleng conference—done before the judge to consider the
for Finals. Some answers have been given but please take other matters of pre-trial other than the marking of
note that these are not the 100% guaranteed correct documentary evidence, such as but not limited to
answers. Also, this may contain grammatical errors kay studying the allegations, the statements in the affidavits
kapoy na proofread. Sorry hehe God bless to us, guys! of witnesses and other documents which form part of the
PI
CGDP
15. Why is it important to record the proceedings? All
RULE 118—PRETRIAL agreements and admissions made or entered during the
pre-trial conference shall be (1) reduced in writing, and
1. What is pre-trial? proceeding before the trial proper for (2) signed by the accused and counsel. If this is not
the purpose of considering: followed, such admissions cannot be used against the
(1) Plea bargaining accused. likewise, the proceedings during the
(2) Stipulation of facts preliminary conference shall be recorded in the Minutes
(3) Making for identification of evidence of Preliminary Conference to be signed by both parties
(4) Waiver of objections to admissibility of evidence and counsel.
(5) Modification of the order of the trial if the accused
admits the charge but interposes a lawful defense 16. What is plea bargaining? Accused and the
(6) Other matters that will promote a fair and prosecution work a mutually satisfactory disposition of
expeditious trial of the criminal and civil aspects the case, subject to court approval. As a rule, it must be
with the consent of the offended party. Usually, it
2. Why is it mandatory? It is mandatory in the SB, RTC involves the pleading guilty to a lesser offense
and MTC. It is especially important since no evidence
shall be allowed to be presented and offered during trial 17. You were charged with rape, you want to plea
other than those identified and marked during the pre- bargain to slight physical injuries, can it be done?
trial except when allowed by the court for good cause. No, slight physical injuries is not considered necessarily
included in the offense charged.
3. May there be a pre-trial before the Office of the
Prosecutor? None, because the Office of the 18. Duty of the Judge when a plea bargaining is agreed
Prosecutor does not conduct trial, the same as OMB. upon.
(1) Issue an order to that effect
4. What about in the Court of Appeals? Or SC? No, they (2) Proceed to receive evidence on the civil aspect of
are both appellate courts that do not have original the case
jurisdiction of conducting trial for criminal cases (3) Render and promulgate the judgment of conviction
including the civil liability or damages duly
5. What about the Labor Arbiter? Nope, that is not a established by evidence
criminal case.
19. Why should the judge still ask for evidence for the
6. Is pre-trial in a civil case mandatory? Yes civil aspect of the case? To determine civil liability,
there is a different quantum of proof needed. It is only
7. When are you supposed to conduct pre-trial? mere preponderance of evidence, in contrast to criminal
cases which require guilt beyond reasonable doubt.
8. At all time? No, if accused is under preventive
detention, then within 10 days after the raffle of the case 20. What is pre-trial order? It is an order issued by the
judge setting forth the actions taken during the pre=trial
9. What if X, accused fails to appear in the pre-trial conference—the facts stipulated, the admissions made,
conference? There will be a waiver on his opportunity the evidence marked, the number of witnesses
for plea bargaining. presented and the schedule of trial. Remember, the Pre-
Trial Order governs the entire trial
10. What is the effect when the accused does not
appear in the pre-trial? Plea bargaining deemed 21. What is the difference between the pre-trial in a civil
waived case and that in a criminal case?
(1) In Civil Case—preceded by a motion ex parte to set
11. What is the effect if the private offended party fails the case for pre-trial; the purpose is to consider the
to appear? Plea for Lesser offense possibility of amicable settlement or of submission
to alternative modes of dispute resolution; sanction
12. Supposing the counsel of the accused failed to for non-appearance is upon the non-appearing
appear? Why would you sanction him? He has party; parties are required to file and serve their pre-
contributed to the delay on the prosecution of the case trial briefs
or the criminal proceedings; in effect right to speedy trial (2) In Criminal Case—motion is not needed to set pre-
violated trial in order; amicable settlement is not its purpose;
sanction for non-appearance is imposed upon the
13. Prosecutor absent? Same effect and same reason as counsel of the prosecutor; no pre-trial briefs are
the counsel of the accused required

14. Difference between preliminary conference and pre- 22. What is the sanction if non-appearance in civil
trial conference? Preliminary conference— case? If it is the plaintiff who does not appear—

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 2

dismissal of the case; If it is the defendant who does not claims. Is this a proper subject of mediation? Yes,
appear—the presentation of evidence will be done ex the civil aspect of theft may be a subject of which.
parte
33. In the above case, with the claim reduced, can the
23. Is pre-trial brief mandatory in criminal case? In civil accused ask the judge to lower the penalty? No, the
case? It is not mandatory in criminal cases, unlike in civil reduction of the penalty pertains to the criminal aspect
cases. which cannot be the subject of the JDR or CAM. With
regard to the matters that can be mediated, trial court
24. What is the effect of non-submission of pre-trial will refer the matter to mediators (Philippine Mediation
briefs in a civil case? Failure to file the pre-trial brief Center—they are not lawyers). If the mediation is not
shall have the same effect as failure to appear at the successful, the entirety of the records will be forwarded
pre-trial to the office of the judge. The judge will schedule the
JDR. The judge will act as mediation-conciliator
25. Effect in criminal case? Pre-trial briefs are not
mandatory in criminal cases because it must be 34. If the JDR judge will say that the case will definitely
recognized that the accused should be afforded some be not in favor of the accused, is the judge biased
leeway. When you say brief, it encapsulates your here? No, as a neutral evaluator, it is his role to assess
case—put all your admissions, denial, witnesses to the relative strength and weakness of each party’s case
present, provide modes of discovery and others.
35. What is the role of the JDR judge?
26. What is JDR? Judicial Dispute Resolution is an (1) Mediator and conciliator—facilitates the settlement
innovative concept in the judicial system. It is a process discussions
whereby the judge (JDR judge) employs conciliation, (2) Neutral evaluator—assesses the relative strength
mediation or early neutral evaluation in order to settle a and weakness of each party’s case and makes a
case at the pre-trial stage. In the even the JDR fails, then non-binding and impartial evaluation of the chances
another judge (Trial judge) shall proceed to hear and of each party’s success
decide the case.
36. Is the mediation process confidential? Yes, all JDR
27. Purpose of JDR. It hoped that mediation and conferences shall be conducted in private. The JDR
conciliation at the level of the judge would contribute judge cannot pass on any information obtained thereon
significantly to the resolution of mediatable cases, to the trial judge or to any other person
thereby increasing the satisfaction of litigants.
37. Supposing the JDR proceedings was not
28. Why would it avoid the clogging of court dockets? It successful, may the JDR judge continue in handling
aims to strengthen conciliation during the pre-trial stage the case? As a general rule, no. The trial judge should
in order to expedite the resolution of cases remain impartial. The JDR judge will inevitably have his
own resolutions and reservations that can affect his
29. What is CAM? Court-Annexed Mediation is a voluntary impartiality. However, if the parties insist na same judge,
process conducted under the auspices of the court by okay ra di na mag raffle balik
referring the parties to the Philippine Mediation Center
Unit for the settlement of their dispute, assisted by a 38. What is viatory right? Usually in civil cases where if
Mediator accredited by the SC the witness is required to be present during a hearing
and he lives 100 km away from the court, he can invoke
30. What cases is JDR necessary? his viatory right.
(1) All civil cases, settlement of estates and cases
covered by the Rules of Summary Procedure 39. May you conduct deposition in a criminal case?
(except criminal cases as it may be a source of (People vs Webb) Yes, BUT it is subject to the sound
corruption), and those which by law may not be discretion of the court.
compromised (Article 2035, NCC)
(2) Cases cognizable by the Lupong Tagapamayapa 40. How is it different from the conditional examination
(3) Civil aspect of BP 22 cases of witnesses? The conditional examination of
(4) Civil aspect of quasi-offenses witnesses can ONLY BE DONE BEFORE THE TRIAL
(5) Civil aspect of criminal cases where the imposable (in that short window before trial) under those grounds
penalty does not exceed 6 years and the offended cited. However, the deposition can be done DURING
party is a private person trial which is subject to the discretion of the trial court.
(6) Civil aspect of theft, estafa and libel
41. May the prosecutor conduct the conditional
Note: All cases which are not successfully settled in examination of witnesses? As a rule, it is the court that
the CAM will be subject to JDR can conduct such but the prosecutor may be allowed to
conduct the conditional examination of witnesses upon
31. There is a rape charge. The accused bargained request to the trial court (See Sec 12-13, Rule 119)
regarding the civil liability amounting to 1M. may it
be a proper subject of JDR and CAM? No, it is not 42. Conditional examination by the prosecution and by
provided that the civil aspect of rape may be a subject the defense difference. The necessity of the
of JDR and CAM conditional examination of the witnesses for the
accused must be shown to the satisfaction of the court—
32. There is a theft case. During the schedule (1) witness is sick or infirm, (2) he resides more than 100
mediation, there was a compromise to lower its km from the place of trial and has no means to attend
the same, or (3) similar circumstances exist that would

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 3

make him unavailable or prevent him from attending. RULE 119—TRIAL AND DEMURRER TO EVIDENCE
However, the witness for the prosecution may be
conditionally examined when it satisfactorily appears 47. When should trial commence? Not later than 30 days
that such witness is too sick to appear or has to leave from the receipt of the pre-trial order
the Philippines with no definite date of returning.
48. When should the arraignment of the accused be
43. What are the grounds for the Defense to ask for the conducted? Within 30 days from when the court
conditional examination of the witnesses? Sec 12, acquires jurisdiction over the person of the accused
Rule 119
(1) witness is sick or infirm as to afford reasonable 49. Supposing the person is under detention, when are
ground to believe that he will not be able to attend the you supposed to conduct your arraignment? Within
trial 10 days from the date of the raffle of the case and the
(2) he resides more than 100 km from the place of trial records transmitted to the judge
and has no means to attend the same, or
(3) similar circumstances exist that would make him 50. There are periods which are excluded. What are
unavailable or prevent him from attending. these? Time when the Motion to Quash and Bill for
Particulars and other matters will be processed
44. Witness for the Prosecution? Sec 15, Rule 119
It satisfactorily appears that such (1) witness is too sick 51. When shall pre-trial commence? Within 30 days after
to appear or (2) has to leave the Philippines with no arraignment
definite date of returning
52. Supposing the accused was arrested in Jan 2017
45. What is the difference between the place of the but in sept 2017, he is yet to be arraigned; if you are
conditional examination if the witness is from the the counsel, what you shall do? File a Motion to
prosecution and if he/she is from the defense? The dismiss on the ground of violation of the right to speedy
conditional examination if the witness is from the trial
prosecution, it can be done before the court where the
case is pending. However, the conditional examination 53. Court scheduled the case for arraignment on Oct. 2,
of the witness from the defense can be done outside the assuming on the said date the accused was
court where the case is pending. The rationale is to give arraigned. On Oct. 3, you filed a motion to dismiss
everything to the accused—give him the right to confront on the ground that the right of the accused to
witnesses and give the accused the full opportunity to speedy trial was violated because he was arraigned
present his defense. after the lapse of several months. May that motion
prosper? No, it is deemed waived when the counsel
46. The prosecutor is asking for the conditional allowed the accused to be arraigned.
examination of witness who is in US. Can it be
done? No, being the prosecutor’s witness, the 54. What are the delays which should be excluded in the
conditional examination can only be done before the counting of the commencement of trial?
court where the case is pending. (1) The examination of the physical and mental
condition of the accused 

(2) Proceedings with respect to other criminal charges
against the accused 

(3) Extraordinary remedies against interlocutory orders
(4) Pre-trial proceedings (provided delay does not
exceed 30 days) 

(5) Orders of inhibition or change of venue 

(6) Finding of the existence of probable cause 

(7) Absence or unavailability of an essential witness
(8) Mental incompetence or physical inability of the
accused to stand trial 

(9) Continuance 


55. Who is a material witness? A material witness is one

whose testimony is so essential and indispensable to
the trial

56. What are the requisites in order for the absence of

the witness be considered as an excuse for a valid
delay? To justify the delay, the witness cannot be just
any witness. He must be an essential witness. The
essential witness is absent when: (1) whereabouts are
unknown; or (2) whereabouts cannot be determined by
due diligence. The essential witness is unavailable
when even if his whereabouts are known, provided that
that his presence for the trial cannot be obtained by due
diligence.

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 4

57. What is a continuous trial? once commenced, the trial motion for discharge, his sworn statement shall be
shall continue from day to day as far as practicable until inadmissible in evidence (Sec 17, Rule 119).
terminated but it may be postponed for a reasonable Remember, not only his sworn statement but anything
period of time for a good cause. that is attached as against the accused cannot be used
against him
58. Grounds for a valid continuance.
(1) Failure to grant such continuance will render the 66. What is the effect if the accused is discharged as a
continuation of the proceedings impossible or result state witness? The discharge shall amount to an
in a miscarriage of justice acquittal and shall be a bar to another prosecution for
(2) Case itself is so novel (e.g. numerous accused) that the same offense EXCEPT if the accused fails or
it is impracticable to expect adequate preparation refuses to testify against his co-accused in accordance
within the periods prescribed with his sworn statement constituting the basis for his
discharge.
59. What are the prohibited grounds for a continuance?
(1) Congestion of the court’s calendar 67. What if you are the judge and you have a charge of
(2) Lack of diligent preparation rape, however you find out that the crime committed
(3) Failure to obtain available witnesses on the part of is not really rape but some other crime out there?
the prosecutor What will you do? Order for the substitution of the
complaint or information
60. Period for trial. Should not exceed 180 days from the
first day of trial except as otherwise authorized by the 68. What is the order of the trial?
SC (1) The prosecution shall present evidence first (a) to
prove the charge and (b) to prove the civil liability in
61. How do you secure the attendance of a material the proper case.
witness? First, either party may ask the court to issue a (2) The accused may present evidence to prove his
subpoena to require his attendance. If he does not defense, and damages he sustained, if any, arising
appear then either party may, upon MOTION, secure an from the issuance of a provisional remedy in the
order form the court for a material witness to post bail, if case.
the court is satisfied upon either (1) proof or (2) oath that (3) The prosecution and the defense may, in that order,
a material witness will not testify when required. If the present rebuttal and surrebuttal evidence unless
witness refuses to post bail, the court shall commit him the court, in furtherance of justice, permits them to
to prison until he complies or is legally discharged after present additional evidence bearing upon the main
his testimony has been taken issue.
(4) Upon admission of the evidence of the parties, the
62. Who is a state witness? Witness for the prosecution. case shall be deemed submitted for decision unless
He is not necessarily an accused of the case. the court directs them to argue orally or to submit
written memoranda (Sec. 11, Rule 119).
63. How do you discharge an accused as a state
witness (Requisites)? 69. What is rebuttal evidence? Evidence to oppose or
(1) Prosecutor will file a Motion for the Discharge of the disprove the evidence presented by his opponent
Accused
(2) File the Motion before the prosecution rests its case 70. What is surrebuttal evidence? Rebuttal to the other
(3) Upon receipt of such motion, the court shall require party’s rebuttal. Give the parties a chance to present all
the prosecution to present evidence and the sworn their evidence.
statement of each proposed sate witness
71. What is reverse trial? When the accused admits to the
64. What conditions must be present to qualify an charge but invokes a justification or exculpatory
accused to be discharged as a state witness? defense. It will now be the accused who will present the
(1) 2 or more accused are jointly charged evidence first. Thus, there is a modification of the order
(2) accused to be discharged gives his consent of trial or reverse trial.
(3) trial court is satisfied that:
i. There is absolute necessity for the 72. May the trial court reopen the case despite there is
testimony of the accused already a final judgment of conviction? Yes, at any
ii. There is no other direct evidence time before the finality of the judgment, the judge may,
available
 MOTU PROPIO or UPON MOTION, WITH HEARING in
iii. The testimony can be substantially either case, re-open the proceedings to avoid a
corroborated in its material points
 miscarriage of justice. The proceedings shall be
terminated within 30 days from the order granting it.
iv. Said accused does not appear to be the
most guilty

73. When does the judgment become final and
v. Said accused as not at any time been executory? The reckoning point is the lapse of the
convicted of any offense involving moral period within which to file an appeal.
turpitude
(4) Accused should not appear to be the most guilty 74. What is trial in absencia? Trial will proceed
notwithstanding the absence of the accused during the
65. What will happen to the evidence during the proceedings
discharge? Is it automatically reproduced? The
evidence adduced in support of the discharge shall 75. Can the accused be tried in absencia? Is that
automatically form part of the trial. if the court denies the allowed? Yes

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 5

76. What are the requisites of a valid trial in absencia? Sec. 23, Rule 119. Demurrer to evidence. After the prosecution
The following requisites must CONCUR: rests its case, the court may dismiss the action on the ground of
(1) Accused has already been arraigned insufficiency of evidence (1) on its own initiative after giving the
(2) Accused has been duly notified of the trial prosecution the opportunity to be heard or (2) upon demurrer to
(3) The absence of the accused is unjustified evidence filed by the accused with or without leave of court.

77. What are the instances when the accused has to be If the court denies the demurrer to evidence filed with leave of
present? court, the accused may adduce evidence in his defense. When
(1) Arraignment and plea the demurrer to evidence is filed without leave of court, the
(2) During trial, whenever necessary for identification accused waives his right to present evidence and submits the
(3) Promulgation of sentence, unless it is for a light case for judgment on the basis of the evidence for the
offense, in which case, the accused may appear by prosecution.
counsel or representative
The motion for leave of court to file demurrer to evidence shall
78. Can the accused send someone else to appear specifically state its grounds and shall be filed within a non-
during arraignment in his behalf? No, the accused extendible period of five (5) days after the prosecution rests its
should personally appear during arraignment in order to case. The prosecution may oppose the motion within a non-
be properly apprised of the nature and cause of the extendible period of five (5) days from its receipt.
accusation against him.
If leave of court is granted, the accused shall file the demurrer to
79. Can the accused waive the requirement of his evidence within a non-extendible period of ten (10) days from
presence for purposes of identification? The notice. The prosecution may oppose the demurrer to evidence
accused’s counsel will inform the court and agree that within a similar period from its receipt.
every time the witness will try to identify the accused, he
is the same person who is the accused in the case and The order denying the motion for leave of court to file demurrer
the same person who entered the plea. This is to save to evidence or the demurrer itself shall not be reviewable by
the accused from embarrassment of being pointed out appeal or by certiorari before the judgment.
as the accused in front of everyone
84. What is demurrer to evidence? It is an objection by
80. During trial, can the judge propound questions on one of the parties in an action, to the effect that the
the witness? As a rule, he cannot, as if he is the one evidence which his adversary produces is insufficient in
conducting direct examination and cross examination. point of law, whether true or not, to make out a case or
He can only ask clarificatory questions. He has to sustain the issue
appear and remain as an impartial judge
85. While the prosecution is presenting its evidence,
81. What is meant by cold neutrality of an impartial can the other party file a motion for leave of court to
judge? The judge must not only be impartial but appear file his demurrer? No, demurrer to evidence must be
impartial all throughout the trial. (Under the new set of done after the prosecution has rested its case.
rules of civil procedure, the judge is allowed to ask
questions. He should not only be a passive judge but 86. What is leave of court? Permission you ask to the trial
must propound questions during the hearing. The court for you to file your demurrer of evidence and other
counsels of the plaintiff and defendant can object to the pleadings.
questions asked by the judge. However, necessarily it is
the judge who will rule on the objections made by the 87. Why is leave of court necessary (focus on the effect
counsels on his own questions. BUT FOR CRIMINAL if you file your demurrer with or without leave of
CASES, it is not allowed.) court)? If you filed your demurrer with leave of court and
the trial court denied your demurrer, the party can still
82. What is the importance of formally offering one’s present their evidence. If you directly file your demurrer
evidence? The Court considers the formal offer of without leave of court, you are no longer allowed to
evidence as necessary because the findings of fact and present evidence. It is deemed waived.
the judgment of the trial court are based on the evidence
offered by the parties. Documents which have been 88. When are you supposed to file your leave of court?
identified and marked as exhibits during the pre-trial but File the motion for leave to file the demurrer within a
which were not formally offered in evidence cannot, in non-extendible period of 5 days after the prosecution
any manner, be treated as evidence. has presented its case. In fact, the prosecution is given
the same period to oppose.
83. Are there exceptions (to formally offering one’s
evidence)? 2 requisites must CONCUR: 89. If your motion for leave is granted, when are you
(1) Evidence was duly identified by testimony duly supposed to file your demurrer? The accused shall
recorded file the demurrer within a non-extendible period of 10
(2) Evidence was incorporated in the records of the days from notice. The prosecution may oppose the
case demurrer within a similar period.
Note: Another exception is (1) when the court takes
judicial notice of adjudicative facts or (2) where the 90. What if the trial court granted the demurrer?
court relies on judicial admissions or draws Amounts to an acquittal
inferences from such judicial admissions or (3) trial
court determines the credibility even without the
offer of the demeanor as evidence.

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 6

91. Can you file a MR? What if appeal? No in both cases. RULE 120—JUDGMENT
The only remedy is a petition under Rule 65 for a finding
of grave abuse of discretion. 95. What is judgment? Adjudication by the court that the
accused is guilty or not guilty of the offense charged and
92. What if the demurrer is not granted? Participate in the the imposition upon him of the proper penalty and civil
trial, present his evidence (provided it is with leave of liability
court) and if still convicted, appeal and cite it as a ground
of your appeal that the trial court erred in denying the 96. What is a judgment of acquittal? Judgment by the trial
demurrer despite the insufficiency of evidence. court after the trial rendering the accused not guilty for
the crime charged
93. Can the accused not file a petition under Rule 65,
instead of participating in the trial? Remember Gloria 97. What are the requisites of a judgment?
Macapagal-Arroyo, class. She was accused of Formal requisites:
corruption. After the prosecution ended its presentation (1) Written in the official language
of evidence, she filed a demurrer with motion for leave. (2) Personally and directly prepared and signed by the
The demurrer was denied by the Sandiganbayan. judge
Instead of participating in the trial, she filed a petition (3) Contain clearly and distinctly a statement of:
under Rule 65. Tita Conchita said, “Are you bogo?? You a. Facts
cannot file that naman oy”. HOWEVER, SC said Rule b. Law upon which it is based
65 is allowed if there really is a finding of grave abuse of
discretion. SC CAN REVIEW IF THERE REALLY IS A Jurisdictional requisites:
GRAVE ABUSE OF DISCRETION. SC said, that is their (1) JD over subject matter
constitutional duty to review lower court decisions when (2) JD over territory
it is done with grave abuse of discretion. (Remember (3) JD over person
this is a 2017 ruling) Mao na siya, Tita GMA was
acquitted. 98. Under the Constitution, the judgment should
contain the facts and the law upon which the
94. Difference of a demurrer in civil and criminal cases. decision is based upon. What is the rationale behind
Civil cases this? I think part ni siya sa substantive due process, in
(1) requires no prior leave of court; order to apprise the parties of facts and reason behind
(2) when the demurrer is denied, the the judgment
defendant does not lose his right to
present evidence; 99. What are the contents of this judgment of acquittal
(3) if the demurrer is granted, the plaintiff may or conviction?
appeal and if the dismissal is reversed, the Judgment of conviction shall state:
defendant is deemed to have waived his (1) Legal qualification of the offense constituted by the
right to present his evidence; acts committed
(4) it is the defendant who invokes a demurrer (2) Aggravating and mitigating circumstances
by moving for the dismissal of the case. (3) Participation of the accused (principal, accomplice
Criminal case or accessory)
(1) filed with or without leave of court (4) Penalty imposed
(2) accused may adduce his evidence in his (5) Civil liability or damages caused, unless the
defense only when the demurrer that was enforcement of the civil liability by a separate civil
denied was filed with leave of court. action has been reserved or waived
(When filed without leave of court and the
demurrer is denied, the accused waives Judgment of acquittal shall state:
his right to present evidence and submits (1) WON the evidence of the prosecution:
the case for judgment on the basis of the a. Absolutely failed to prove the guilt beyond
evidence of the prosecution) reasonable doubt; or
(3) no appeal allowed when demurrer is b. Merely failed to prove his guilt
granted (2) Determine if the act or omission from which the civil
(4) court may, on its own initiative, dismiss the liability might arise did not exist
action
100. Why is there a need to state if the prosecution
absolutely failed or merely failed to prove the guilt
of the accused? To determine the civil liability or the
existence of the civil liability of an accused.

101. How is the entry of judgment made? After a judgment

has become final, it shall be entered accordingly with
Rule 36. It shall be entered by the clerk in the book of
entries of judgment.

102. Is a judgment written in Cebuano valid? No, the

official language under the Constitution is either English
or Filipino

103. Supposing you are the judge, and you were the one
who heard the case. However, on October 30, 2017,

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 7

you were already appointed to the appellate court 112. If the charge is homicide, then what was proved
and you have accepted such appointment. A new was murder. Can the accused be convicted for
judge cam in on November 1, 2017 and considering murder? No, the accused here shall only be convicted
that it was already towards the end of the for homicide. The accused’s righ to be informed of the
promulgation of judgment, can the new judge nature and cause of the accusation against him will be
render the judgment? Yes, as long as he has studied violated. (I think ang i-consider first is WON the offense
the case and has made his own conclusions based on charged is necessarily included or necessarily includes
evidence. The fact that the trial judge who rendered the the offense proved. Thereafter, the accused can only be
judgment was not the one who had the occasion to convicted of the offense beneficial to him)
observe the demeanor of the witnesses during trial, but
merely relied on the records of the case, does not render 113. If the charge is rape but only acts of lasciviousness
the judgment erroneous, especially where the evidence was proved, can he be convicted for acts of
on record is sufficient to support its conclusion. lasciviousness? Yes, acts of lasciviousness is
necessarily included in the charge of rape
104. Supposing you were the judge and on September
30, 2017, you already retired prior to that on July 114. Someone was charged with murder and the
2017, you already drafted the decision in the qualifying circumstance of evident premeditation
criminal case but promulgation was scheduled only was included in the information, but during the trial,
on October 2017. May the new judge be allowed to what was proved was treachery. Can he be
promulgate such? No, the old judge cannot just leave convicted of murder? Yes, herein there is only a
the promulgated copy in the office. The new judge has variance in the mode of commission of the offense, not
no authority to just merely sign the promulgation of the variance in crime. The variance is not a bar to his
old judge. It is important to note that the retired judge conviction of the crime charged. A variance in the mode
has no longer authority at all to actually make that of commission of the offense is binding upon the
judgment. The judge’s authority must be until the accused if he fails to object to the evidence showing that
promulgation of the judge. What the new judge should the crime was committed in a different manner that what
do is to check the records, take a look at the decision. was alleged.
After doing so, he may simply cut and paste and sign it
as if it was his own. 115. What if the accused objects to the presentation of
evidence on the ground that it is a different mode of
105. What is the retirement age of a judge? 70 years old commission alleged in the information? Is it
allowed? Sustain the objection. It becomes violative of
106. What is the rule on variance? (Sec 4, Rule 120) The the right to informed. The prosecution’s remedy is
offense PROVED is different from the offense substantial amendment.
CHARGED in the complaint or information and the
offense CHARGED is either included in the offense 116. How is judgment promulgated?
PROVED or necessarily includes the offense PROVED. GR: it is done by reading it in the presence of the
In this case, the accused shall be convicted of the accused and any judge of the court in which it was
offense proved or of the offense charged. Remember, rendered.
under the Variance rule, you cannot be convicted of a
higher offense. EXC:
(1) conviction for a light offense—it may be
107. What is the exception of the variance rule? Doctine pronounced in the presence of his counsel or
of supervening event (PI to Homicide). representative.
(2) Accused is confined in another province or city, the
108. What is this doctrine of supervening event? judgment may be promulgated by the EXECUTIVE
A supervening cause is an event that operates JUDGE OF THE RTC having JD over the place of
independently of anything else and becomes the confinement
proximate cause of an accident.
The judgment may be promulgated by the CLERK OF
109. If the accused was in the ICU for 5 years, however COURT if the judge is absent or outside the province or
the victim fully recovered right before the city
promulgation of the judgment. The original
information was for frustrated homicide. Can he 117. What if the accused fails to attend such
only convicted for physical injuries due to this promulgation? Accused fails to attend despite notice,
supervening event? No, under this doctrine of promulgation shall not be suspended. If it is for
supervening event, the offense becomes greater in conviction, the accused will lose the remedies available
character, not lesser. to him against the judgment and the court shall order his
arrest. However, he may still avail of such as long as
110. If the charge is murder, can the accused just be within 15 days from promulgation, he surrenders and
convicted of slight physical injuries? No, one files a motion for leave of court to avail of the remedies.
element of murder is that the victim has died. However,
physical injuries are covered by homicide cases. 118. A person was convicted in the MTC. He was not
around, despite due notice. Can he still avail to
111. If the charge is murder, then what was proved was continue the bail? No.
homicide, pwede? Yas, homicide is necessarily
included in murder, vice versa 119. Can you modify a judgment? Yes

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 8

120. How do you modify a judgment? Judgment of 128. What is the Neypes Rule? “Fresh Period Rule” Period
conviction may be modified or set aside, upon motion of for appeal is reckoned not only within 15 days from the
the accused, before the judgment becomes final or notice of the judgment but also within 15 days from notie
before appeal is perfected of the final order appealed from.

121. After the trial court promulgates its judgment, there Note: Remember the 3-fold Rule in Criminal Law. This is
are available remedies—one is Motion for New Trial. with respect to how the maximum penalty is imposed. It
What is this motion? At any time before a judgment of should not exceed 40 years.
conviction becomes final, the court may, on motion of
the accused or at its own instance but with the consent 129. What is the effect of judgment of conviction upon a
of the accused, grant a new trial or reconsideration minor? There will be a suspension of his sentence

122. What are the grounds for filing a Motion for New 130. What if the accused was a minor when he
Trial? committed the crime but when the judgment was
(a) The errors of law or irregularities prejudicial to the promulgated, he was already a major (lolz)? He will
substantial rights of the accused have been committed have to serve his sentence
during the trial;
(b) The new and material evidence has been discovered 131. What is probation? Disposition under which a
which the accused could not with reasonable diligence defendant, after conviction and sentence, is released
have discovered and produced at the trial and which if subject to conditions imposed by the court and to the
introduced and admitted would probably change the supervision of a probation officer
judgment.
132. If your application for probation was denied, can
123. How do we know if such evidence is a “newly- you still exercise your right to appeal? No.
discovered” evidence? The following need to
CONCUR: 133. When does the judgment become final?
(1) evidence must have been discovered after trial (1) After the lapse of the period for perfecting an appeal
(2) could not have previously discovered and produced (2) When the sentence has been partially or totally
at the trial even with the exercise of reasonable satisfied or served
diligence (most important!) (3) When the accused has waived in writing his right to
(3) new and material evidence appeal
(4) if introduced and admitted, it would probably (4) Applied for probation
change the judgment
134. Difference between Motion for Recon and Motion
124. The accused was acquitted. After acquittal, the for New Trial?
prosecutor was able to get hold of newly discovered Motion for New Trial—proper only after rendition or
evidence. Can he file a motion for new trial? No, promulgation of judgment but has not become final on
there will be a violation of the accused’s right against the grounds of fraud, accident, mistake, excusable
double jeopardy negligence and newly-discovered evidence. There has
to be a motion that has to be filed
125. What is meant by Motion for Reconsideration?
Motion filed before the court to reconsider (1) errors of Motion for Reconsideration—no longer a new trial or
fact in the judgment (e.g. accused was charged and hearing that will take place and the judgment will be
convicted of Frustrated Homicide and the accused based on the pleadings submitted by the parties.
contends that it is only physical injuries; prosecution
brushed aside the evidence you presented; only the 135. What is recantation? A witness who previously gave
evidence of the defense was entertained) or errors of a testimony subsequently declares that his statement
law in the judgment (e.g. error in the application of law; was not true
for ex. filed special civil action for certiorari instead of
ordinary appeal), both where it requires no further 136. What is an affidavit of desistance? Complainant
proceedings, and not on newly-discovered evidence states that he did not really intend to institute the case
and he is no longer interested in prosecuting. It is only a
Note: In the MR, you are just pointing out to the trial ground for dismissing the case only if the prosecution
court that it should check the records and that it can no longer prove the guilt of the accused without the
committed an error. testimony of the offended party

126. Should both these MR and Motion for New Trial be 137. Can recantation be a ground for new trial? If the only
in writing? Yes, and it shall state the grounds on which evidence of the prosecution is the testimony which was
it is based. If based on newly-discovered evidence, the withdrawn, then it can be a ground for new trial.
motion must be supported by affidavits of witnesses by However, if there are other competent evidence to
whom such evidence is expected to be given or by duly convict then it cannot be a ground for new trial.
authenticated copies of documents which are proposed
to be introduced in evidence. 138. Can the affidavit of desistance be a ground for
dismissal? NO. There is nothing in the rules that the
127. What are the effects of allowing a new trial? in all affidavit can warrant the dismissal of the case. However,
cases, the original judgment shall be set aside or it may result to the dismissal of the case if the fiscal
vacated and a new judgment shall be rendered cannot prosecute without the witness’ testimony.
accordingly.

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 9

139. Can you appeal the Motion for New Trial or Motion RULE 122, 124 125—APPEALS
for Recon? No, do not appeal such motion. What you
appeal is the decision itself. 144. What is an appeal? Assailing the correctness of a
judgment of a lower court to the appellate court in order
140. How is reopening of the case done? At any time for it to review the case. In appeal, everything is open
before the finality of the judgment of conviction, the for review, both the criminal and civil aspect.
judge may MOTU PROPRIO OR UPON MOTION, with
HEARING IN EITHER CASE, reopen the proceedings 145. Who may appeal? All parties, including the prosecutor
to avoid a miscarriage of justice. The proceedings shall for as long as it does NOT amount to a violation of the
be terminated within 30 days from the order granting it. accused’s right against double jeopardy. In appeal
proceedings, it is the OSG who is supposed to handle
141. When can you file your motion for new trial? file the the matter for and in behalf of the RP. However, as a
motion at any time before the judgment of conviction rule, appeal by the State is not allowed because it
becomes final generally amounts to a violation of the accused’s right
against double jeopardy
142. When can you file this reopening of the case? at any
time before finality of the judgment of conviction, the 146. Can the OSG appeal the accused’s conviction or
judge may motu proprio or upon motion, with hearing in acquittal? No, he will violate the accused’s right against
either case, reopen the proceedings to avoid a double jeopardy. You are putting the accused in another
miscarriage of justice jeopardy. The purpose of the OSG is to represent the
State when the accused will appeal.
143. May the stupidity of the counsel be a ground for
new trial? As a rule, no. However, the exception is 147. Right to appeal is not a natural right, correct? Yes,
when the mistake is so grave in character that it is it is merely a statutory privilege. It may be exercised only
tantamount to the deprivation of the accused of his day in the manner and in accordance with the provisions of
in court. The stupidity resulted very serious prejudice to law. Once it is granted by law, its suppression would be
the client and the client shows good cause that he a violation of due process.
should be granted a new trial
148. If the accused in the lower court theorized that he
committed the act on self-defense but during the
appeal, the accused retracted and said he did not
commit the offense. Can that be allowed? No, the
party cannot change his theory on appeal, nor raise in
the appellate court any question of law or fact that was
not raised in the court below or which was not within the
issue raised by the parties in their pleadings. this would
be offensive to the basic rules of fair play, justice and
due process.

149. Where will you appeal a decision of the MTC? RTC

through a notice of appeal (this is the ordinary mode of
appeal; you inform the court which rendered the
decision that you appeal the decision)

Note: Notice of Appeal must also be served to the

adverse party

150. From the decision of the RTC, where are you

supposed to go?
If decision of the RTC in the exercise of its appellate
jurisdiction—
(1) CA, via petition for review under Rule 42

If decision of the RTC in the exercise of its original

jurisdiction—
(1) CA, via notice of appeal
(2) when the decision of the RTC is RP or LI—CA via
notice of appeal
(3) Death penalty (no more death penalty now)—
automatic review by the CA

151. Decision of the CA is LI or RP, where will you go?

SC via notice appeal

152. Decision of the CA other than LI or RP, where will

you go? SC via Rule 45 (Petition for review on
certiorari—but it is a misnomer since it is really an
appeal. The real certiorari is Rule 65 which is a separate
and distinct animal from your original case.)

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 10

(3) If the appellant escapes from prison or

153. Decision of the CA which is death penalty, where confinement, jumps bail or flees to a foreign country
will you go? SC via automatic review during the pendency of the appeal

154. Decision of the SB (in its appellate jurisdiction) and

SB says the penalty is RP or LI. Where will you go?
SC via notice of appeal

Note: Duty of the Office of the Special Prosecutor of

the OMB is to conduct trial and represent the State
before the SB. Also, remember CA and SB are co-
equal in power

155. Decision of the SB (in its original jurisdiction) and

SB says the penalty is RP or LI. Where will you go?
SC via notice of appeal. There is no distinction when it
is rendered on its appellate jurisdiction

156. Decision of the SB (in its appellate jurisdiction) and

SB says the penalty is BELOW RP or LI. Where will
you go? SC via petition for review on certiorari (Rule
45)

157. Decision of the SB (in its original jurisdiction) and

SB says the penalty is BELOW RP or LI. Where will
you go? SC via petition for review on certiorari (Rule
45). NO DISTINCTION AGAIN

158. Decision of the SB (in its original or appellate

jurisdiction) and SB says the penalty is Death.
Where will you go? SC via automatic review

159. Can you withdraw an appeal? Yes, appellant may

withdraw appeal before the record has been forwarded
by the clerk of court to the proper appellate court. When
the appeal is withdrawn, the judgment becomes final

160. What if the accused already filed his appeal but he

was paroled? The appeal is not deemed withdrawn
despite the parole

161. Effect when only one of the accused appealed? It

shall not affect those who not appeal EXCEPT when the
judgment of the appellate court is favorable and
applicable to the latter

162. A B C D are the accused. A and B appealed.

Appellate court acquitted them. Will the acquittal
benefit C and D? Yes, the decision of the appellate
court is beneficial to them

163. What if C and D jumped bail when the appellate

court rendered their acquittal? It will still benefit C and
D

164. Can you stay the execution of the judgment upon

its appeal? It will stay the execution of the judgment
upon perfection of the appeal with regard to the
appealing parties only

165. What if the opinion of the SC en banc is equally

divided?

166. Grounds for dismissal of the appeal.

(1) If appellant eludes the jurisdiction of the court over
his person
(2) If the appellant fails to file his brief within the time
prescribed by this Rule, except where he is
represented by a counsel de oficio

VANILLAELA
Criminal Procedure (Finals) Transcript | Atty. Eduardo Soleng | A.Y. 2017-2018 11

PROVISIONAL REMEDIES IN CRIMINAL CASES discovered evidence. The CA herein will refer the case
to the court of origin if it grants new trial
167. What is provisional remedy? Preservation of the
status quo until final disposition of a matter can occur 178. May the CA conduct trial? The CA shall have the
power to try cases and conduct hearings, receive
168. Nature of provisional remedy. Civil in character but is evidence and perform all acts necessary to resolve
also adopted in criminal cases factual issues raised in cases falling within original and
appellate jurisdiction. CA is not only a trier of law but is
169. Purpose of the provisional remedies. Protect the also a trier of facts. SC is only a trier of law.
offended party to be ensured of the liability of the
accused against him prior to judgment. It prevents a 179. Difference of new trial and reopening of case.
judgment to become a “Paper Judgment” (judgment Motion for new trial presupposes there is already a final
which cannot be enforced because the assets of the judgment. While the reopening of the case, there is no
accused are not enough to cover the judgment) final judgment yet
170. Provisional remedies available in a criminal case.
Preliminary attachment, preliminary injunction,
receivership, replevin or support pendente lite
CONTINUOUS TRIAL
171. What is attachment? Offended party may have the
property of the accused be attached to cover the liability When Motion to Quash is not on the ground as provided
of the accused upon judgment (does not transfer in Rule 117—it should be dismissed
ownership to the offended party) Action to remand the case to the prosecutor’s office to
conduct the necessary PI becomes a prohibitory
172. What is preliminary injunction? pleading if it is filed beyond the 5 day period
Mandatory Injunction—ask the court to compel the MR should be filed within 5 days, not 3 days as provided
accused to do something during the pendency in previous rules
Putting the case in the archive is different from
Inhibitory Injunction—ask the court to prohibit the provisional dismissal of the same (look at the grounds
accused to do something during the pendency for putting the case in the archive)
Revival of the case within 1 year if penalty is 6 years
173. What is receivership? There is a court-appointed below; 2 years if penalty is more than 6 years
receiver who will take care of the business in Accused can waive the reading of the information to him
accordance with the approval of the court (e.g. if with express consent of the accused and there is a
distressed corporation and the receiver will continue the record of such in the Minutes
business and be answerable not to the accused but to Plea bargaining still allowed if complies with all
the court which appointed him as the receiver) requisites, as provided
If there is a plea of guilty, trial court must render
174. Delivery of personal property. Why is it allowed? judgment immediately except if it is a plea of guilty for a
Personal properties of the accused which, for example capital offense
is the subject of theft charge, will be delivered to the trial Kapoy na type guys, nagread ra siyas OCA so basa
court upon evidence presented by the offended party nalang mo oy
that indeed, that personal property is his.

175. What is support pending suit? E.g. VAWC charged

against husband. Wife can also file for support pendent
lite so she can get support from her husband for her and
her children while the case is pending.

Note: No notice to the adverse party, or hearing on

the application is required before a writ of
preliminary attachment may issue as a hearing
would defeat the purpose of the provisional remedy.

176. When is preliminary attachment available?

When the civil action is properly instituted in the criminal
action and in the following cases:
(1) When the accused is about to abscond from the
Philippines 

(2) When the criminal action is based on a claim for money
or property embezzled or fraudulently misapplied to the
use of 
the accused who is a public officer, attorney,
clerk, etc. 

(3) When the accused has concealed, removed or disposed
of his 
property or is about to do so 

(4) When the accused resides outside the Philippines 


177. May you file for new trial in the CA? yes, the accused
may file for new trial upon the ground of newly-

VANILLAELA