Reviewer for Quiz 1

Criminal Procedure, Rule 118 to Rule 121

Rule 118 – Pre Trial

What is Pre-trial?
Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties and to
take the trial of cases out of the realm of surprise and maneuvering. Pre-trial is an answer to the clarion
call for the speedy disposition of cases. It thus paves the way for a less cluttered trial and resolution of the
case. (LCK Industries v. Planters Development Bank, G.R. No. 170606, November 23, 2007)

Why is the conduct of Pre-trial is mandatory?

The holding of a pre-trial conference is mandatory and failure to do so is inexcusable. When the law or
procedure is so elementary, such as the provisions of the Rules of Court, not to know it or to act as if one
does not know it constitutes gross ignorance of the law. Such ignorance of a basic rule in court procedure,
as failing to conduct pre-trial, sadly amounts to gross ignorance and warrants a corresponding penalty.
(National Power Corporation vs. Adiong, A.M. No. RTJ-072060, July 27, 2011)

When should Pre-trial be conducted?

Pre-trial must be conducted before trial of the case for the purpose of considering the following:
1. Plea bargaining
2. Stipulation of facts
3. Marking for identification of evidence
4. Waiver of objections to admissibility of evidence
5. Modification of the order of trial if accused admits the charge but interposes a lawful defense
6. Other matter that will promote a fair and expeditious trial of the civil and criminal aspect (Sec 1).

What is Plea Bargaining?

A process whereby the accused and the prosecution work out a mutually satisfactory disposition of the
case subject to court approval. (Estipona vs. Lobrigo, G.R. No. 226679, August 15, 2017)

It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts
of a multi-count indictment in return for a lighter sentence than that for the graver charge.
(People vs. Mamarion, G.R. No. 137554, October 1, 2003)

What are the matters to be considered in Stipulation of Facts?

As a general rule: Stipulation of facts is allowed in criminal cases.

Exception: Circumstance that qualify a crime and increase its penalty to death cannot be the subject of
stipulation. (People vs. Sitao, G.R. No. 146790, August 22, 2002)

Marking for Identification of Evidence

No evidence may be presented and offered during trial other than those identified and marked during the
pre-trial, except when allowed by the court for good cause shown.
In what courts where Pre-trial is Mandatory?
All criminal cases cognizable by the Sandiganbayan, RTC, MeTC, MTCC, MTC and MCTC (Sec. 1, Rule 118)

When shall pre-trial be set?

General Rule: The court shall order a pre-trial conference after arraignment and within 30 days from the
date the court acquires jurisdiction over the person of the accused.

Exception: A shorter period may be provided by special laws or SC circulars. (Sec. 1, Rule 118)

When is pre-trial held?

(a) Schedule of Arraignment and Pre-trial
1. Detained – within 10 calendar days from the date of the court’s receipt of the case.
2. Non-detained – within 30 calendar days from the date the court acquires jurisdiction over a
non-detained accused.
Note: Court must set the arraignment of the accused in the commitment order as to a detained accused,
or I the order of approval of bail, in any other case. (A.M. No. 15-06-10-SC, Revised Guidelines for
Continuous Trial of Criminal Cases)

(b) Notice of Arraignment and Pretrial

Shall be sent to the accused, his counsel, private complainant or complainant law enforcement
agent, public prosecutor, and witnesses whose names appear in the information for purposes of plea-
bargaining, arraignment and pre-trial.

What happens when a party is absent in the Pre-trial?

The court shall proceed with the pre-trial despite the absence of the accused and/or private complainant,
provided they were duly notified of the same, and the counsel for the accused, as well as the public
prosecutor, are present.

Effects of Non-appearance during the Pre-trial

The court may impose proper sanctions or penalties, if counsel for the accused or the prosecutor to
enforce the mandatory character of the pre-trial in criminal cases:
1. Does not appear at the pre-trial conference and
2. Does not offer an acceptable excuse for his lack of cooperation. (Sec. 3)

Is the presence of the private complainant or the complaining witness required in pre-trial?
Under R.A. 8493, the absence during pre-trial of any witness for the prosecution listed in the Information,
whether or not said witness is the offended party or the complaining witness, is not a valid ground for the
dismissal of a criminal case. Although under the law, pre-trial is mandatory in criminal cases, the presence
of the private complainant or the complaining witness is however not required. Even the presence of the
accused is not required unless directed by the trial court. It is enough that the accused is represented by
his counsel. (People vs. Judge Tac-an, G.R. No. 148000, February 27, 2003)

Indeed, even if none of the witnesses listed in the information for the State appeared for the pre-trial,
the same can and should proceed. After all, the public prosecutor appeared for the State. The public
prosecutor is vested with authority to consider those matters catalogued in Section 2 of R.A. 8493.
Guidelines observed in the conduct of pre-trial
(A.M. No. 03-1-09-SC, July 13, 2004)

After the arraignment, the court shall forthwith set the pre-trial conference within thirty days from the
date of arraignment, and issue an order:

(a) requiring the private offended party to appear thereat for purposes of plea-bargaining except for
violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his
presence; 12

(b) referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least
three days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and
copies thereof to be attached to the records after comparison and to consider other matters as may aid
in its prompt disposition; and

(c) informing the parties that no evidence shall be allowed to be presented and offered during the trial
other than those identified and marked during the pre-trial except when allowed by the court for good
cause shown. A copy of the order is hereto attached as Annex "E". In mediatable cases, the judge shall
refer the parties and their counsel to the PMC unit for purposes of mediation if available.

What is the duty of the Branch Clerk of Court?

During the preliminary conference, the Branch COC shall:
1. Assist the parties in reaching a settlement of the civil aspect of the case.
2. Mark the documents to be presented as exhibits.
3. Compare copies of the exhibits which will be attached to the records.
4. Ascertain the undisputed facts and admissions on the genuineness and due execution of
documents marked as exhibits.

The proceedings during the preliminary conference shall be recorded in the Minutes of Preliminary
Conference to be signed by both parties and counsel.

The Minutes of Preliminary Conference and the exhibits shall be attached by the Branch COC to the case
record before the pre-trial.

What is the duty of the Judge before the Pre-trial Conference?

Before the pre-trial conference the judge must study the allegations of the information, the statements
in the affidavits of witnesses and other documentary evidence which form part of the record of the
preliminary investigation.

What happens when a plea-bargaining is agreed upon by the parties?

During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act of 2002, the trial
judge shall consider plea-bargaining arrangements.

Where the prosecution and the offended party agree to the plea offered by the accused, the court shall:
a. Issue an order which contains the plea-bargaining arrived at;
b. Proceed to receive evidence on the civil aspect of the case; and
c. Render and promulgate judgment of conviction, including the civil liability or damages duly
established by the evidence.
What if plea-bargaining fails?
When plea bargaining fails, the Court shall:
a. Adopt the minutes of preliminary conference as part of the pre-trial proceedings.

b. Confirm markings of exhibits or substituted photocopies and admissions on the genuineness

and due execution of documents.

c. List object and testimonial evidence.

d. Scrutinize every allegation of the information and the statements in the affidavits and other
documents which form part of the record of the preliminary investigation

c. Define factual and legal issues.

e. Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the
court.

f. Require the parties to submit to the Branch COC the names, addresses and contact numbers of
witnesses that need to be summoned by subpoena.

g. Consider modification of order of trial if the accused admits the charge but interposes a lawful
defense.

What is the duty of Judge during Pre-trial?

During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions
must be directed to him to avoid hostilities between parties.

Take Note:

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 Rule 118 shall be approved by the court.
(Section 2, Rule 118)

All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by
the parties and/or their counsels.

What happens after the pre-trial?

The trial judge shall issue a Pre-trial Order within ten (10) days after the termination of the pre-trial setting
forth:
the actions taken during the pre-trial conference,
the facts stipulated,
the admissions made,
evidence marked, the
number of witnesses to be presented and
 the schedule of trial.
Said Order shall bind the parties, limit the trial to matters not disposed of and control the course of the
action during the trial.

Pre-trial Agreement
Requirements:
1. Reduced in writing
2. Signed by the accused and counsel
3. With approval of court if agreements cover matters in Sec. 1, Rule 118. (Sec. 2, Rule 118)

Effects:
1. Constitutional right to present evidence is waived. (Rivera vs. People, G.R. No. 163996)
2. If the requisites are not followed – admissions shall be inadmissible as evidence.

Pre-trial Order
The pre-trial order shall:
1. Be issued by the trial judge.
2. Be issued within 10 days after the termination of the pre-trial.
3. Contain the following:
a. Actions Taken
b. Facts stipulated
c. Evidence marked
d. Admissions made
e. Number of witnesses to be presented
f. Schedule of trial

Effects:
1. Binds the parties.
2. Limits the trial to those matters not disposed of
3. Controls the course of the action during the trial, unless modified by the court to prevent
manifest injustice. (Sec. 4, Rule 118)
Preliminary Conference shall be scheduled at least 3 days before the Pre-trial.

The Pre-trial shall be conducted within 30 days from arraignment.

What are those cases to be referred for mediation?

1. Crimes where payment may prevent criminal prosecution or may extinguish criminal liability.
BP 22, SSS Law, PAG IBIG Law
2. Crimes against property under Title 10, where the obligation may be civil in nature.
Theft, estafa, other forms of swindlings, malicious mischief
3. Crimes against honor under Title 13, where the liability may be civil in nature.
Libel, grave slander, slander by deed, cyberlibel
4. Libel under Cybercrime Prevention Act of 2012
5. Criminal Negligence under Title 14 RPC
6. Intellectual property rights cases.
 Forms of Testimony

1. First Level Courts

Testimonies should be in the form of Judicial Affidavits subject to additional direct and cross-
examination questions.

Testimonies of witness shall consist of duly subscribed written statement given to law enforcers or
public officers.

Trial Prosecutor may dispense with sworn written statement and prepare judicial affidavits.

2. RTC, Sandiganbayan, Court of Tax Appeal

Judicial Affidavit may be used if the demeanor of the witness is not essential.

Such stipulations would be without prejudice to further direct, cross-examination.

In all other cases where culpability or the innocence of the accused is based on the testimonies of
alleged eyewitnesses, the testimonies of these witnesses shall be in oral form.

Judicial Affidavit Rule

The JAR shall apply to all criminal actions:

a. Where the maximum of the imposable penalty does not exceed six years.
b. Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved
c. With respect to the civil aspect of the actions, whatever the penalties involved are.
Requirements in submitting Judicial Affidavit
Civil Case – Section 2, JAR
Criminal Case, Section 9, JAR

Prosecution must submit Judicial Affidavit Rule not later than 5 days before pre-trial.

What is the language used for Judicial Affidavit?

English, Filipino or language known to the witness, accompanied by the translation in English or Filipino.

What should be the contents of Judicial Affidavit?

1. The judicial affidavit shall contain the personal circumstances:
Name, Age, Residence/Business Address and Occupation.

2. The lawyer’s circumstances:

Name, address of lawyer who conducts/supervises examination
Place where examination being held.

3. There must be a statement by the witness:

To the effect that he is fully conscious that answers done under oath and aware of criminal liability
for false testimony/perjury.

4. Q&A
The questions asked and its corresponding answers must be consecutively numbered.

4. Signature of the witness

5. Jurat or Acknowledgement by Notary or Officer authorized to administer auth.

6. Sworn Attestation of the Lawyer

That it was he who conducted/supervised the examination of witness.
Faithfully recorded or caused to be recorded the Q&A
No coaching of witness false.
Note: False Attestation will result to Disciplinary Action, including disbarment.

What would happen if there is non-compliance with JAR?

If a party fails to submit the required Judicial Affidavits and witnesses on time, he shall be deemed to have
waived their submission. But the court may allow only once the late submission of the said judicial affidavit
or evidence, provided that:
1. The delay is for a valid reason.
2. And would not unduly prejudice the opposing party.
3. The faulting party pays a fine of not less than P 1,000.00 or more than Php 5, 000.00.
Rule 119 - Trial
Review:

In all criminal prosecutions the accused shall have the right to be present and defend in person and by
counsel at every stage of the proceedings from arraignment to the promulgation of the judgment.
(Section 1, par. c, Rule 115)

The presence of the accused is mandatory is three stages:

1. During Arraignment
2. During Trial whenever necessary for identification purposes.
3. Promulgation of judgment unless the conviction is for a light offense.

The accused may waive his presence at the trial pursuant to the stipulations set forth in his bail unless
his presence specifically ordered by the court for purposes of identification.

What are the instances of waiver to be present during the trial?

1. The absence of the accused without justifiable cause at the trial in which he had notice.
2. When an accused under custody escapes until custody over him is regained.\

When is a case set 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. 1, Rule 119)

Is trial continuous?
Trial once commenced shall continue from day to day as far as practicable until terminated.

Can trial be postponed?

Trial may be postponed for a reasonable period of time but only for good cause.
Court shall, after consultation with the prosecutor and defense counsel, set case for continuous trial on
weekly or other short-term trial calendar at the earliest possible time to ensure speedy trial.

What is the maximum period for trial?

In no case shall the entire trial period exceed 180 days from the first day of trial, except otherwise provided
by the SC.

What is the remedy of the accused if he is not brought to trial within the prescribed period?
The Information may be dismissed on motion of the accused on the ground of denial of his right to
speedy trial.
-Accused has the burden of proving the motion
-Prosecution has the burden of going forward with the evidence to establish the exclusion of
time under section 3 of Rul 119.
-Dismissal shall be subject to the rules on double jeopardy.

What happens if the accused fails to move for dismissal prior to trial?
His failure would be equivalent to a waiver of his right to dismiss the case on the ground of denial of his
right to speedy trial.
The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed
to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an
indefinite time, and to prevent delays in the administration of justice. (Corpuz vs. Sandiganbayan, G.R.
No. 162214, November 11, 2004)

There is no violation of the right where the delay is imputable to the accused. When the accused resorts
to tactical maneuvers, he waives his right to speedy trial. (People vs. Jardin, G.R. No. L-33037-42, August
17, 1983)

What are the important periods to observe?

1. Between acquisition of jurisdiction over the person of the accused to arraignment and pre-trial.
Detained accused – Within 10 days
Non-Detained Accused – Within 30 days.

2. Between receipt of pre-trial order to trial.

Within 30 days.

Note: Period of delay excluded from the computation. (Sec. 3, Rule 119)

What types of delays are excluded from computing the period for commencement of the trial?
(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 the existence of a prejudicial question; and
(7) Delay reasonably attributable to any period, not exceed thirty (30) days, during which any proceeding
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.

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

(d) 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.

What are the factors in granting postponements or continuance?

The court considers the following:
a. Whether or not failure to grant a continuance would likely make a continuation of such
proceeding impossible or result in a miscarriage of justice.

b. Whether or not a 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 period of time established therein.

Motion for Postponement

A motion for postponement is prohibited, except if it is based on acts of God, force majeure or physical
inability of the witness to appear and testify.

If granted: moving party shall be warned that the presentation of evidence must still be finished
on the dates previously agreed upon.

A motion for postponement: at all times accompanied by the original official receipt from the OCC
evidencing payment of the postponement fee under Sec. 21 (b), Rule 141.

To be submitted either at the time of the filing of motion or not later than the next hearing date.

COC shall not accept the motion unless accompanied by the original receipt.

ORDER OF TRIAL

Prosecution presents its evidence in chief

Accused present his evidence in chief

Prosecution presents its rebuttal evidence

Accused presents his surrebuttal evidence

Case is submitted for decision

The order of the trial may be modified when the accused admits the act or omission charged in
the complaint or information but interposes a lawful defense. Burden of evidence will switch to the
accused. (Sec. ll [e], Rule 119)

Detailed:
(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 the evidence of the parties, the case shall be deemed submitted for decision unless
the court directs them to argue orally or to submit written memoranda.

(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. (3a)

Rule 120 -