RIGHTS OF AN ACCUSED

Nunez vs Sandiganbayan on the process of Criminal Due Process.

Due process as limitation to police power is not entirely different but a broader concept of due process. While criminal due process is more specific as it applies now to:

1. Criminal Proceeding 2. On the procedural aspect of the proceeding

Whereas if we talk about due process as limitation to police power: it talks about the substantive aspect as well of the law. But assuming that there is compliance with the substantive aspect of the law, the process by which the person can be deprived of life or liberty if not, property by way of penalty of forfeiture, then there should be compliance with the criminal due process – which according to the court in Nunez vsSandiganbayancomteplatesof :informing the accused of the nature of the accusations and the specific charge.

1. Nature and cause of the accusations. Cause- why was he charged? What was the act considered as the basis of the charge? If you are charged of Murder – that’s the nature. Cause: because you killed X with the use of a bladed weapon.

2. Given the opportunity to be heard3. Judgment against you should only be based on the

evidence presented in court – you will have the right to cross examine the witnesses against you

And then the required proof of conviction: proof of guilt beyond reasonable doubt. This is done before judgment and the judgment is to be handed over by the competent court. So that is essentially the basic concept of due process.

There was an issue on equal protection because apparently, there was a question of why those charge of estafa under the Anti-Graft and Corruption practices Act for Public Officers. They have lesser remedy for appeal, narrow remedy for appeal and only grave abuse of discretion. But in the case of ordinary citizens, not government officials, they still have remedy of appealing on matters of law and facts to the Court of Appeals and later to the Supreme Court.

But then again, the court found a valid classification between government officials using up public funds and private individuals misappropriating private funds. That to me is also a valid classification. In your exam of course, is the law valid if it distinguishes man from woman. In most answers you said yes provided the distinction must be substantial. Nalimtanbitawang germane to the purpose of the law. Mao untana!

Now we have another right of the accused which is the Right to be Presumed Innocent. The right to be presumed innocent until proven guilty. Not only that, the proof of guilt must be proof of guilty beyond reasonable doubt.

What do you mean by the accused is presumed innocent. What are the implications of the statement that an accused is presumed innocent until proven guilty?

So if youre saying that if youre not granted bail so that means guilt is strong. So you mean presumption of innocent here is not applied?

Presumption of innocence even if your offense is non-bailable. And even if you are denied the application for bail, presumption of innocence still applies.

Tura? (CR) Yap?? What are the implications of being presumed innocent until proven guilty beyond reasonable doubt?

Demi: It implies sir that the prosecution has the burden of proof to show that the guilt of the accused is to be proved beyond reasonable doubt. Like the strength, the evidence should not focus on the weakness of the defense but on the strength of the prosecution, sir.

Sir: The judge should not rely on the weakness of the evidence of the defense but on the strength of the evidence of the prosecution in rendering a judgment. Or an accused is indeed presumed innocent until proven guilty.

Sir: Now if you say the prosecution has the burden of proof what do you mean by that?

D: That there should be moral certainty as to the evidence presented by the prosecution

Sir: So when you say the prosecution has burden of proof, that the prosecution must present evidence?

D: Yes sir.

S: but the prosecution will really present evidence!

D: and the defense sir also has to present evidence sir

S: you have the burden of proof doesn’t mean that you should present evidence because you always have to present evidence

D: I think it means that the state sir has all the resources to be able to produce evidence sir?

S: Are you familiar with what’s found in criminal procedure which is DEMURER TO EVIDENCE? Don’t you know that the crim proceeding may be terminated even when the accused has not yet presented evidence? For indeed the burden to show guilt beyond reasonable doubt is on the prosecution. So the accused may opt not to present evidence at all.

Because when you say PRESUMPTION OF INNOCENCE, it means

The accused is not bound or obliged to prove his innocence. It is the burden of the prosecution to prove the guilt. Sayonara no? but not so because when the evidence of the prosecution is strong and convincing, you might as well be compelled to give evidence just to paint and establish the doubt.

What is an EQUIPOISE RULE in evidence?

D: that the evidence of both parties are evenly balanced. The innocence should build the skills(?) in favor of the accused.

What is the important condition before the Equipoise rule may be applied?

D: That there should be equal evidence of the prosecution and defense.

S: if it is equal then the decision of the court should be in favor of the accused cos he is presumed innocent.

So one implication of the right to be presumed innocent is the burden of proof which is by the prosecution. And what will the prosecution prove? Guilt that is beyond reasonable doubt.

What do we mean by Reasonable Doubt?

D: That there should be moral certainty?

Sir : What do we mean by moral certainty? Moral Certainty on the part of the judge, that the accused committed the crime. Why are we talking about moral certainty? Because we need to realize that it is NOT absolute certainty that is required. Only god can do that.

Whats the reason for the requirement of reasonable doubt in relation to presumption of innocence? Vizconde Massacre Case, can you tell us the outcome and the reason why accused aquitted and apply the case to the principle of presumption of innocence.

D: Accused got aquitted because the evidence was based on hearsay..

You have to read this case because it shows that whenever there is doubt on the basis of evidence on record. A lot of inconsistencies had been observed by the court- ranging from improbability of certain testimonies on the part of Alfaro. Why would Jessica Alfaro who has just met a complete stranger in Webb and other company who sent a message from Webb to Carmelaand for her to even spread her own gas and there was a testimony that she was in fact the first who entered into the house and then somebody shouted “Sino yan?” she was also the first to hide when she knew all along that that was the plan.

Tanawa ha geunsapaganalyzesa court. The moment the court sees the evidence, not only physical, object. Also testimony.Inconsistencies in testimonies is also important because that may manifest or show that the testimony is fabricated. So the reason of the pres of innocence- when there is reasonable doubt, it should be resolved in favor of the accused.

And there was also a discussion on the nature of alibi. While alibi is a weak defense, it doesn’t mean that everytime the accused invokes as defense alibi that it is not worthy of appreciation in the face of the positive identification of a witness. Because positive identification, to be able to outweigh the defense of denial and alibi, what are required?

The rule is alibi anddenial are weak defenses in criminal cases. Unsaganinang alibi class? “ikaynangawatnoh?” diliuy, ngano man mangawatkoananganaa man koi kwarta.” “ahh d komodawatanaimong alibi.”

In law, ALIBI means: you could not have committed the crime because you are in another place where it is physical ly impossible for you to have committed the crime at a particular date and time.

e.g. I wasn’t in Jollibee at 5pm, I was in class at that time so I could not have committed the crime.

For alibi to be appreciated, it is required that there is physical impossibility for the commission of the crime. For one, you consider the distance. Second you consider the time.

For the above example, is alibi appreciated? No, because while you attended a class at 5 oclock, it wasn’t impossible to have gone to Jollibee and commit the crime there and come back to class. That’s possible. But to say for e.g. “I could not have committed the crime in Jollibee on March 2 at 5pm because I was at Manila.” Not only the distance, you consider the time.

A good alibi was presented by Webb because he was in US. Now on the matter of the pieces of evidence presented, its not so much on the weakness of the defense of alibi but on the strength of the prosecution’s evidence.

Take note that ALIBI IS A WEAK DEFENSE. But only in the face of a positive identification by an eye witness.If there was an eye witness who said “I saw you killing Juan” and the defense of the accused is “I wasn’t there.” Which evidedne is more heavy and acceptable to the court? Positive identification or the denial by the accused? Under the ROC, alibi is a weak defense because it can be easily fabricated. Dali ra kayo ingnonwalakodidto. But it’s a lot difficult to say that you were there. Negative evidence is easier to fabricate than positive defense. You will learn that in law on evidence..dalira kayo e deny.

So why are we talking about this? In order to appreciate how the SC analyzed the guilt of Webb and Co in this case. Ilang alibi di man entirely inappropriate. However accdng to the Court, for positive identification to outweigh alibi, there are 2 requisites for positive identification: (For evidence to be credible or believable it must:)

1. Comes from a credible witness2. Testimony of the witness is also credible

Jessica Alfaro asset of NBI, and there was a testimony that she in fact volunteered to offer the testimony as the supposed witness. So iyang credibility as a witness is questionable. Second, the testimony of the witness must also be credible pero there were inconsistencies and so the Court noticed in both standards the testimony of Jessica Alfaro failed to convince the court that accused was guilty of the crime beyond reasonable doubt.

The right to be heard by counsel, by himself and by counsel – is that absolute? Is it possible for an accused to say I waive my right to counsel, I can handle this case, I don’t need a lawyer? Are there any conditions before the right of counsel to be waived?

This is in trial na, not custodial investigation. In trial we also have the right to counsel. This is the right to be heard by himself AND counsel. So may the right to counsel in criminal proceedings be waived?

Maygpariha tang Uncle Marcos Ferdi dba? (hahaha) when he was accused of committing murder of a certain ladongdasa??? He was in fact taking the bar with preparation of less than 2 months under house arrest kay pending man to iyang case. Although it wasn’t entirely true nawa siyay counsel. Naa lai instances na siya lang ang nag handle sa iyang case in the absence of counsel.

But the Right to Counsel, can it be waived?

K: it can be waived if you have the capacity to defend yourself

S: what do you mean by capacity to defend yourself? Lets have this case of Tulin. He was represented by first someone who misrepresented himself as lawyer.

K: I think if you have legal background

S: is it stated in the law that you should have legal background? Is it the capacity to defend yourself or is it whether or not you are capable of protecting your rights? Kay d man na defending yourself, meaning you are capable of getting an acquittal? You will need a lawyer there. But when you say being capable of being able to protect your rights, not necessarily an acquittal- that’s a different standard. You have to use the wording of the law. Because if you say “capacity to defend yourself” that’s like saying “capacity to get an acquittal.” But if it’s just capacity to make sure that your rights will be amply protected then that’s different. Is it the rule also before that you can waive provided that the court is convinced that you know how to fully protect your rights? Or is it not on the past waiver of the right to counsel in criminal proceeding was not allowed because it was against public policy?

Are you aware of that, that in the past the right to counsel in a criminal proceeding can’t be waived because it is against public policy? If one's allowed waives the right to counsel he may not be able to exercise and in so doing will right in fact be held or be convicted, not because of the inherent strength of the evidence of the prosecution but probably for the inability to quit in court for the witnesses of the prosecution’s evidence. For indeed whether you like it or not no matter how brilliant we are if we are not schooled in law and evidence it may be hard for one to be able to defend himself so it’s against public policy to wwaive the right to counsel. Now it can be done, thatat you can waive your right provided that you can convice the court and the court is also convinced that you can amply protect your rights as an accused.

What is this, informed of the nature and cause of the accused? What is the idea of this? Will you be sent a letter by the fiscal, of offense and the charge? Can it be in fact being done?

What Happen in the case of people vsbayya, what is the rule now in the allegation of the information? An accused be convicted of the crime under, with aggravating circumstance when the aggravating

circumstance is not allege in the information, you know that rule? In the past if the qualifying circumstance, for example, if not allege but proven in trial it is appreciated a generic aggravating circumstance. It was so confusing because of those principles, now it was made simpler, black and white rule, if it is not allege in the information, whether it is qualified or aggravating it is not appreciated even if it is proven in the trial. What is the reason for that? The reason is that the right of the accused to be informed of the nature and cause of his accusation.

Problem: X had been charged of the crime of estafa, of postdating a check, will he be convicted of BP22.

What was not allege in the case people vs bayya? although proven during trial, because the penalty of Death for this incestuous crime of rape is imposed under the death penalty at that time when the victims below under 18 years of age but the minority was not found in the information you can not be convicted of the crimes under the law as a qualifying circumstance for the application of death penalty.

So, let’s talk about the right of the accused.

Start with the Right to bail, we already discussed that, there is one important point there that the right of bail is not always available to any accused, i think you might have read somewhere that the right to bail is not available to the members the armed forces facing court martial proceedings because of the nature of the, not only of the offense but also the nature of their skill, ability and tendency and capacity also the influence witnesses being powerful agents of the state.

We go to the Right of due process of law,

The law itself must be reasonable The accused is informed of the accusation, be given the

opportunity to be heard, and convicted on the basis required quantum of evidence.

Appeal when granted by law must be afforded to the accused

As i mentioned earlier its specific specie the right to due process. Due process in the limitation to police power is broader because it involves substance and procedure. Due process of criminal proceeding is of course more on the process is when the person is to be convicted of the crime. Obviously when it is part of the larger concept of due process, we require that the law under which v person is convicted for purposes has likewise be reasonable that is in fact the substantive due process aspect. But above all this is what you should take note, the accused is informed with the accusations, opportunity of the pieces of evidence and quantum of evidence required.

This is well illustrated in the case of nunezvssandiganbayan, aside from that talking about appeal, is appeal part of the right due process? Meaning if you are denied to appeal is that a violation to due process? Can you mention a provision on the constitution that grants the right of the accused? Let’s say, a law was passed the decision of the RTC in criminal cases involving the penalty of less than one year of imprisonment shall no longer be appealable and

shall become final is that a violation of due process? Is a denial of appeal, a remedy or is denial of due process? Anyone? Do you think that law is a valid law and not the violation of due process? (

daraang answer oh, when appeal is granted by law must be afforded by the accused conversely if the law itself provides that there is no appeal then there is no violation of the right to due process it becomes a violation of due process when, if the law allows appeal but and he is not afforded then that is a violation of due process. that is the general rule. however, when you look at what is the minimum appellate jurisdiction of the SC? what is that? this is the Power of the SC to review

Constitution art 8 sec 5 (2):

Section 5. The Supreme Court shall have the following powers:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

b. All cases in which the jurisdiction of any lower court is in issue.

c. All criminal cases in which the penalty imposed is reclusion perpetua or higher.

So minimum appellate jurisdiction of the court in relation to due process in criminal cases, the court has a constitutional power to review decisions of lower courts where the penalties imposed is of reclusion perpetua or higher. why do we call that minimum appellate jurisdiction of the court? because jurisdiction class as you have learnt in consti one is determined by law, so congress decide naa bay power ang court or wala. so court decide whether a particular case is appealable to the SC. congress decide if cases of BP22 can be elevated to the SC, then that is perfectly ok, because jurisdiction is determined by law by congress. But congress cannot deprive SC of the right to review if the imposable penalty is RP or higher. Congress has no discretion here. meaning if the case here involve is the penalty is RP or higher, and most cases this crimes are imposable by RP or higher.

So is this appeal part of due process? generally it is not part of due process because it is essentially statutory, that is the rule, only given by law but if given by law it must be granted of course to the accused. in any case those crimes punishable by RP or higher it is always a right to go to SC. SC has the authority to review that decision under the Constitution.

So, this is what the SC state in the Nunez

In criminal proceedings then, due process is satisfied if the accused is "informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is

not tainted with falsity after full opportunity for him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction." (Nunez v. Sandiganbayan)

Then we go to the Right to be presumed innocent, unsa may mga implication? one implication is that the prosecution should prove guilt beyond reasonable doubt, ok, in other word, the conviction of the accused will not be based on the witnesses of the defense but solely on the strength of the evidence of the prosecutor, meaning the faith of the accused should solidly base on the evidence of the prosecution. but in any case of course if the required proof is guilt beyond reasonable doubt the converse of that is when there is reasonable doubt the judgement should be acquittal in fact it is mandatory when there is a judgement of reasonable doubt the accuse maybe acquitted, in fact it is explained in the case of Webb.

That is one implication. The requirement that there has to be (1)

moral certaintyis not absolute certainty required. When you study evidence you will learn there the meaning of moral certainty on the part of the judge, the judge is simply convinced that on the basis of evidence presented that he is morally certain that the accused has committed the crime.

that also explains why as a rule the accused must be represented by counsel. the one you mentioned earlier, conviction must depend not on the basis of the defense but on the strength of the prosecution. precisely there is this is the thing called the demuller of evidence in criminal proceeding. What is demuller of evidence? after the of presentation of the prosecution pwedeka class mo go for the dismissal of the case on the basis of insufficiency of evidence even before the accused will present his own evidence, available to the accused. in fact the accused can always invoke the right to remain silent without saying anything at all by not presenting any evidence and so the prosecution, or rather the success of the case entirely depends on the prosecution.so in a decision of the judge for example, let’s focus on the inconsistencies and the incredibility, the lack of witness on the part of the defense, mao nay ang focus but there is not much in the discussion of the strength of the prosecution of evidence would warrant on the acquittal.

second we adopt (2) equipoise rule precisely because of the presumption of innocence. assuming that there is equality in the strength of the prosecution and evidence for the accused. The equipoise rule mandates, and it is mandatory ha, the judge must render a judgement of acquittal but of course it presupposes that there is equality in the weight of the evidence.

Our declaration in justice Abad in the case of Webb after a rather convincing analysis on the testimony of Jessica,

In our criminal justice system, what is important is, not whether the court entertains doubt about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. Or, it would be a serious mistake to send an innocent man to jail whether such kind of doubt hangs on to one’s inner being, like a piece of meat

lodge immovable between teeth. (Lejano v. People/People v. Webb, 2010)

The Idea is the judge should not have this feeling of doubt nga medyo uncomfortable cya about a particular evidence. “murag dili ko komportable sa testimony ni Jessica Alfaro”. Dba ingon pa gae ang court nga its weird nga nag.una2x pa si Jessica Alfaro ug sud nya siya pa kunuhay didto nag.una pag.lead nilang Webb and Company and then she was the one to first supposedly escape when somebody shouted “sino yan?”.Nya basta daghan kau mga improbabilities. Nganu nga pagngon man ang sugan gani ingon man kaha si Carmela nga abliha nniyaang kitchen? So they can come in the third time they went back to the house of the Vizconde. Unya sa dihang nag.yup2x na. Mintras nag.yup2x sila didto class after kunuhay. Just to explain the anger of webb to carmela so that he will be moved to commit the crime. Napugos kunu ug ingon si Jessica nga Carmela went out for a while on the second time ni.adto cya sa house nakit-an nga nag.drop-off cya ug male companion supposedly mura kunu ug boyfriend ingon ana bah. And then when webb knew about it he got jealous and then that explains why he planned to gang rape carmela vizconde nya ingon man gae to sila nga kami sad ambot pila to sila kabuok, “O,cge2x ato tabangan”. About probably 7 of them decided to gang rape. Pro pag abot kunu sa balay. Si Alfaro,Si Webb and 2 others maoraangni.sud. Ang kadto d I n.ingon nga sige apil ko ana gang rape, tuara sa gawas?! Ingon ang SC murag there’s something wrong with this one.

-Mao it is very important if you want to succeed in law practice that “you must have a good grasp of human experience”. Kay dinha mana nimu ma.test ang reasonableness and credibility of a testimony.

PROSECUTION MUST PROVE GUILT BEYOND REASONABLE DOUBT

COSEP VS PEOPLE : where the state fails to meet the quantum of proof required to overcome the constitutional presumption the accused is entitled to acquittal regardless of the weakness or even the absence of his defense {awa ha? Even the absent nga pwede man xa mo.remain silent, d na xamo.present ug evidence ipa.dismiss niya on the ground insufficiency of evidence upon the filing of what is known as DEMURRER TO EVIDENCE]

EQUIPOISE RULE – applies only where indeed there is a balance in the weighing of evidence. Pro if clear ang evidence sa prosecution then objection is proper.

Presumption of Innocence

It is the duty of the prosecution to prove the guilt of the accused, but are they not aware that there are instances where presumption of innocence does not come into play?

Principles in Criminal law where presumption of innocence may not apply, because there are far more logical link between the facts and the assumed fact :

1. a person who is in possession of a falsified document and takes advantage or uses the falsified document that he is the author of the forgery there fore it is incumbent upon the accused to prove now that he is not the author kay presumed nman siya nga siya ang author.

2. Any person who is in possession of a stolen item is presumed to be the thief or the one who committed the crime of theft.

3. Malversation . Misappropriation for example. Kanang cashier mo.report ug shortage upon demand, there is failure to account. Dba there’s a presumption of misappropriation.

Nganu allowed mana class? Mga presumptions in favor of the guilt rather than the innocence of the accused.Because there is a logical basis, the fact and the assumption logical ang ilahang connection.

For example : cashier naaka shortage you are unable to account or explain the shortage. What does it mean? That you have misappropriated the money otherwise it is easy for you to say [dba nahimu cya nga misappropriation kay upon demand there is inability to account and explain the shortage] nya nangutana cya “nganu kuwangan mani ug 50,000?” Ambot. “ambot ka karon, ikaw rajud nakahibalo ug nganu kuwang na ug 50,000.” Whereas, kana in-ability to explain man the shortage ug innocent ka simple ra kaau na. “nganu kuwang man ug 50,000?” –dri man gud to si mayor ganina sir,nya ingon man siya iya daw tan.awon ang cash nya man huwam man kunu cya iya lang daw uli-an daun- “pila man kunu iya huwamon?” -50,000- so n.explain moh, korek? So inability to explain shortage there is a presumption that you have misappropriated the money bec. It is not difficult for an innocent person to explain those instances. So nay logical thing bet. The facts established and the facts assumed. So dli xa against sa constitutional right.

MEANING OF REASONABLE DOUBT

REASONABLE DOUBT should necessarily pertain to the facts constitutive of the crime charged. Discrepancies that touch on significant facts are crucial on the guilt or innocence of an accused. Conversely, inconsistencies and discrepancies in details w/c are irrelevant to the elements of the crime are not grounds for acquittal.

Ugmo.ingon gae ka ug reasonable doubt it should be reasonable doubt on the evidence constituting the elements of the crime. It may be hard at this time for you to appreciate that bec. You still have to study evidence but force yourself to understand that that is the requirement on reasonable doubt.

PEOPLE VS CALMA : 3 minor children iyag.biktima.

Supposedly 3 reasonable doubt nga iya g.establish [ accused],

After the alleged commission of the crime of incestuous rape :

o Close pman kunu gihapon siya sa iya mga anako One year kapin nka .survive sad ni mga bata.a

nga wa mo.tug-an for more than a yearo D sad katuohan nga ang 15 year old kay

na.inlove sa iya father. o High grades. Still performing very well in school.

Ug biktima pa ni a ug incestuous rape wala na unta na n.perform sa skul ug maau nya dagko-a ug grado oh.

Are all of those instances ELEMENT OF CRIME? NO. Unsa my dapat e.discuss? BROKEN HYMEN.

o Unsa my number 1 reason : FORCE ENTRY OF A HARD BLUNT OBJECT.

Number 1 suspect of a hard blunt object is --------------. That one.

Could it be that the hard blunt object be a finger?

Could it be the finger of the girl? -tuod man na establish na there could be another pro wa manay labot sa elements of the crime nganu man d I ugmo.ingon ang dr. nga falling hard on a hard object also. So kadto iyaha long years nga ni complain ang children, suppose good relationship, good grades. Even the commission of the crime itself infact will create doubt dli namo. Ingon nga mura mag .impossible mahitabo na and therefore there is reasonable doubt and therefore there should be acquittal. D na maoy pasabot class. Bec. Infact human mind will not be able to anticipate, imagine all the pervert crimes that a man may commit. So ayaw’g ingon nga impossible g.ingon ana pag.comita ng crime, d ko mo.too and therefore, innocent. So kanang reasonable doubt class reasonable doubt on the pieces of evidence not reasonable doubt nga it is highly improbable that the crime was committed bec. Of this and bec.Of that. You have to look at the evidence. Testimonial evidence in the first place of the children ka klaro adto. Rulings of the court ,nganu credible mana nga testimony? There are rulings of the SC that say that its not easy for a person of tender age to come out of the open and accuse her father of a crime no less than rape against her. Mao btaw na sa rape cases nga testimony of the rape victim is the only testimony that is presented by the prosecution it was not corroborated by other evidence. Ok ka lang? Most rape crimes are committed in the solitude or in solitary. Kay d na committed by the company of other people. Specially the crime of rape. Nya mangau kaug corroborative testimony. It’s not by the number it’s in the credibility of the testimony, the credibility of the witness of course and the credibility of the testimony itself . D na saun class magpa.news kaya tinga rape victim ka. Toohan nlng jud na nimu.

Sweetheart theory: He could have not raped the victim because they were sweethearts. D mana mo.follow. He could have not committed

rape because the victim is a prostitute. Just to create doubt bah but those doubts do not have any bearing on the physical evidence. Unsa mana ang physical evidence? Laceration for example is it not proof for force entry? And therefore, without consent and therefore, there is rape.

Mo.ingon ka are you telling the court dr. that there is clear penetration? YES. Is it possible in medical science to establish that the penetration here actually is done by the accused in this case? Probably under our new science.DNA. YES. We can look at the semen and make DNA comparison or test. Nya establish na daun na nimu. Sunod na theory, Police n.request ba ug medical examination and the getting of semen for DNA testing? Wala,so it creates doubt. Ana ka sa evidence. That is the meaning of reasonable doubt.

THERE MUST BE MORAL CERTAINTY (NOT ABSOLUTE CERTAINTY)

CONVICTION MUST DEPEND NOT ON THE WEAKNESS OF THE DEFENSE BUT ON THE STRENGTH OF THE PROSECUTION

THE RIGHT TO BE HEARD RIGHT TO PRESENT EVIDENCE AND BE PRESENT DURING

TRIAL WITH THE ASSISTANCE OF COUNSEL

- In the past it was not allowed as it is considered to be against public policy.

- Now, it can be done provided that the court is convince that the accuse can protect his rights aptly but the court must be satisfied.

MUST BE GIVEN THE OPPORTUNITY TO ENGAGE THE SERVICES OF COUNSEL

Situation:

Judge : Mr. accused, Do you have a counsel of your own?

Accused: no judge.

J: do you wish to get a counsel of your own?

A: yes judge.

J: will you not accuse a counsel de officio assigned to you?

[ counsel de officio – counsel appointed by court]

Decision must come from the accused. Because indeed if he insists that he should be represented by a counsel of his choice the court must wait and give the accused the opportunity to hire that counsel of his choice. HOWEVER, naa lge mga maldito na akusado class bah, ahh..mao d I ni basta absent ang counsel ma.postpone.

A: your honor I am not ready to proceed because my counsel is absent. [ SOP sa judge kay trained mna cla]

J: So you’re telling the court that you really wish to hire a counsel of your choice?

A: yes your honor.

J: you will not accept a counsel de officio for purposes lng of the direct examination of the first witness of the prosecution.

A: no your honor I’d rather ask my own lawyer to come and appear.

-Duty of the judge: cancel and postpone, give him the opportunity to engage the services of a counsel. D postponed na, nya dagan ug pila buwan, 3-4 months.

J: Oh? Naa nka counsel of your own choice?

A: naa na unta to judge pro ana man cya nga d pa xa ready today kay wa pa cya ka study sa case kay gahapon pa nku g.hire.

-postponed nsad. Hatagan jud ug every opportunity bah.kay lisod pud kaau ug imu e.violate. Hatagan jud nimu ug every opportunity kay ug prosecution ka class aron ig.ma.convicted na wan a jud cyay reklamo. Kay ting ani strikto kaau ka nya on appeal ma.kit.an na didto sa higher court nga wa cya mahatagi ug opportunity to engage the services of a cancel. D,pildi na nuon ka.

-So ni.dagan na ug one year.

A: Now your honor I have a counsel.

J: ok,very good. Now we are ready to listen to the first witness of the prosecution.

Fiscal: Your honor, we are here to manifest that our supposed first witness died last month.

-g.huwat ra d I nga mamatay. Himatyon, lung cancer.

Hire another counsel npud kay n.withdraw ang lawyer or whatever reason.

Postponed npud. Kay hire another counsel.

-Strategy nga wala sa libro. So that if that right is abused by the accused and there is evidence that that is used to delay the proceeding that will not prevent the judge to insist that a counsel de officio be assigned provided that the judge will make assure that the counsel de officio assigned is a competent one.

J: Mr. dela Cruz this is the fourth time that we have cancelled the hearing bec. You said you will bring with you a counsel of your own choice but after four times after four settings you still fail to hire the services of a counsel. I think enough is enough. Atty. --- you are hereby appointed.

Is there something wrong with that? NO. Bec. It was already established that that accused was already given the opportunity to engage the services of a counsel. So ayaw pag too nga d ka proceed at the behest of the accused ra..D sad cguro.

March 5

Trial in absentia is it allowed?

Meaning in all proceedings the accused must be present?

So for as long a he has already made the plea and he is absent for a particular hearing then the case or the hearing would proceed even in his absence anyway the arraignment is already done.

Is not that he must be present The question is may he be absent?

Remember this is the right to be present so were taking about whether or not a hearing conducted by the court in the absence of the accused will violate the right to hearing.

Janice: the right to hearing is that (dle maklaro)

CJ: I believe that the 3requisites of trial in absentia: 1. Accused must be duly notified of the hearing 2. There must be an arraignment 3. The absence is unjustifiable. it means that there is an exception to the general rule

But there may be an instance where the accused cannot insist on being present in the hearing because if the condition under which trial in absencia may be conducted then that is not a violation of his right to be present.

on the other hand may he be compelled to be present also? Because it seems that the right to be present then If the accused wants not to be present then he is waiving his right. A right may or may not be exercised, but can he be compelled to appear even though supposedly to be present is a right and therefore can be waived may he be compelled nevertheless.

Yes. Purposes of positive identification. He may be compelled to be present so that he cannot make an excused, that he was not there. If he doesn’t appear then no positive identification can be done. Although in practice may be abused by the accused and if the accused has posted bail, the chances are of course he must have submitted photographs/pictures when he jumps bail and does not attend anymore it shouldn’t prejudice the prosecution. So if he jumps bail the prosecution can continue by simply asking the witness to identify the accused through the pictures in the record, so while it maybe mandatory it should not prejudice the prosecution.

What else? Are there any other instances where the accused may be compelled to be present?

Emboy: when he unqualifiedly (dle klaro, pro sure ko naa ni sa bernas, last paragraph under this topic.haha) im asking other instances

What about arraignment. Do you think arraignment can be done through a representative, or through tele conferene or facetime or… wala no. personal plea cannot be given to a substitute or a representative. What else?

What about promulgation of judgment? Yes sir it should be present ….. that is a rule but it shouldn’t prejudice the accused because if the accused is absent on the day of the scheduled promulgation while he may be compelled but if he continues to refuse to appear then judgment can still be done in open court even in the absent of the accused provided of course is that his absence is unjustifiable and

the consequence of course is that the accused may no longer avail of appellate remedies. You must have read that in ecleo.

Some cases though may not make dispense with the appearance of the accused in promulgation especially those offenses that are punishable by light felonies. So light offenses for example, a judgment maybe waived promulgation can be done even in the absence of the accused, no need to determine whether the accused is justified in his absence that’s inconsequential, if that is for light offense it may right away be promulgated and be recorded by entering the decision in the records of the clerk of court.

Have you read the case of? Lacson vs Executive secretary (daghan na winner apil nku)

Lets go straight to the relevant issue here. It’s about the sufficiency of the information so as to comply with the requirements that the accused must have been informed of the nature and the cause of his accusation. It was observed by the supreme court that the information was defective because it did not sufficiently state the factual allegation required in the rules of court. So how was the information stated and what made it defective in that case?

Winner again

Dapanas to the rescue. 2nd and 3rd paragraph of this case.

Lacson and company because they were charged before the sandiganbayan. What was the jurisdiction of the sandiganbayan there? The jurisdiction of the sandiganbayan,so it was important for the information to state that they were public officers and that the acts that constituted the crime were related to there function as public officers. Now the place in the discharge of there official duties. What did the SC say about it? Was it sufficient. the court said it was in fact it was a conclusion of law rather than a conclusion of facts.

There must be a link of the discharge of functions by mentioning service of warrant, effective arrest, conducting a raid, buy-bust operation. There must be a process rather than simply stating that in the discharge of their function they have committed a crime. That is conclusion of law, because it has not been stated why it was in the discharge of their functions. It becomes in the discharge of their functions by factual allegations that there are specific allegations to the discharge of their function. Unsa may function sa police? Affecting an arrest serving a warrant buy bust operation etc etc. mao na ang pag specify sa facts rather than mere conclusion of the law.

Now miss curan. How is the right to meet the witness face to face accomplished?

Anna: to confront and cross exam, by cross examination of the witness. What is your understanding of cross examination? That the witness is presented during the trial and then he or she will be questioned by the lawyer. So all questions by the lawyer is cross examination? Is it not there is such a a thing as direct examination and cross examination?

What do you mean by the right of the accused to cross examine?

What about affidavits? When are they admissible in court? Do you know what affidavits are? When are they admissible in court? There is a condition before an affidavit may be admitted. It is not that we submit an affidavit in court. Do you think that an affidavit maybe submitted as long as it is notarized and voluntary? Ok nana? Is it admissible?

Banoc

The affidavit submitted to the court what are the conditions under which it maybe admitted miss curan said basta lang voluntarily excuted under oath properly executed by affiant then it maybe admitted right away?

Banoc: no when the evidence is offered and it is not objected to by the defense it maybe admitted.

Ok that’s a good premise. Assume that it is objected. Then is it objectionable.

What should be the proper objection? What is the proper ground for objection? Assume that it is relevant, material. The affidavit

What is the proper ground?

Fernandez: yes sir the affidavit won’t be admissible if there was no cross examination. Because according to cruz it iis mere heresay (there is not factual basis of the statement, not personal knowledge)

There is a saying that an affidavit is just a mere scrap of paper until and unless the affiant himself appears in court and subjects himself to cross examination by the other counsel. Without that cross examination the affidavit is a mere scrap of paper because it can be considered as heresay.

What about medical certificate issued by doctors? When are they admissible in court?

Cross examination need not be conducted. What is important is the opportunity of the accused through his counsel to cross examine the witness.

The accused also has the right compulsory processes. How is this accomplished? The right to compulsory processes?

Dba the accused has the right to compulsory processes? What do you mean by compulsory processes.

It is one of the rights of the accused.

Who will take the attendance of tomorrows activity?

Miss bawasanta what do you mean by attendance of the witness? How should a witness be compelled to attend? Isn’t it true the issuance of subpoena that the witness maybe compelled to attend. And it is compulsory because failure to heed maybe held in contempt of the court?

What is a subpoena ad testificandum? a writ commanding a person to appear in court to testify as a witness

What is a sub poena duces? a writ commanding a person to produce in court certain designated documents or evidence

What is a subpoena duces tecum? In order to comply with the right to speedy trial, because one of the rights of the accused is involve 3 rights here compounded. It’s the (1)right to speedy trial, (2)right to impartial trial and (3)right to public trial. Together, they are called the right to speedy, impartial, and public trial.

Let’s talk about the right to speedy trial. Is postponement not allowed because of the right to speedy trial? How will you put teeth to right with the right to speedy trial? Not all delays are prohibited in the trial. What are prohibited are those unreasonable, unjustifiable, vexatious, and oppressive delays. Who determines that? The judge of course.

In criminal cases, we have this what we call marathon trial. Situation: You have just killed the sister of the president. You will be all over the news as the accused for the crime of the century. You have been the subject of all the talk. Almost every day, your face appears on the newspaper. Your lawyer, got pissed off and said enough is enough, you should put an end to this trial by publicity. How do you think should your lawyer argue that the coverage of your trial be prohibited? Publicity will tend to affect the judgment of the judge. For as long as the publicity has the tendency to influence the mind of the judge, then the judge must probably inhibit itself? Or you should might just stop the publicity? But don’t you think it should be a violation to the freedom of the press if the court decides to prohibit newspapers in including you in the news account everyday? Or don’t you think you should distinguish between newspaper, broadcast, or live coverage of the trial? Which one should be allowed and which one should not be? Live coverage, broadcast, news account? What was the decision of the court in Estrada vs. Desierto on the petition saying that the ombudsman should stop investigating because the accused has been subjected to trial by publicity? In other words, do you think it is a violation of the right to have an impartial trial? It said that trial by publicity is not a ground to say that the judge is or can be impartial. That is on the matter on impartiality.

Let’s talk about public trial. Should a live coverage of a trial be prohibited? The problem in the Estrada case is that the prosecution, including the press, wanted the live coverage of the Estrada trial. Instead of the accused pleading that it should be covered live, ang prosecution may gusto live. So the issue here is, if the accused says, it shouldn’t be covered live, what possibly be the justification for this? Ani nalang, should a criminal trial be covered by media? Second, pwede ba live or pwede di? Because in Estrada, apparently, gi cover, pero dili live. The right to public trial is a right of the accused. It should be the accused who should invoke it in the first place. With this being said, can the prosecution now request that it should be covered live? In the Estrada vs Desierto, live coverage was not allowed. Only covered, recorded, but not broadcasted live. But in the Ampatuan case, it was live coverage? How was is distinguished by the SC? The court observed that there was an impossibility of having all of the accused, 197 of them, fit in the court room. Not only that, i.apil pa nimo ilang family. Mao nang

kaingun ang SC na we will allow it subject to some conditions. On the Oct 23, 2012 resolution of the SC to the matter of coverage of the Ampatuan Case. Pero outside sa court room, para ang families makakita, naay designated court rooms outside. Meaning other courts where live coverage may be allowed. Only in the case of Ampatuan. But for the case of Estrada, Aquino, and even Laranaga, the right to Public Trial is the right of the accused and it is the accused himself who must insist, not the prosecution, not the media. But to balance freedom of the press, they were not prohibited. They can cover, but not live. Record lang, which may be broadcasted later because that might also affect the so called Sub Judice rule.

Can you refuse the taking of your blood for DNA testing to prove that you have committed the crime? You can, but what can be the valid ground? That is against your right to self-incrimination. Because the moment your blood sample matches the specimen found in the crime, certainly, you will be held liable. Is that the ruling in the court in the case of Pp vs Yatar? (Father’s side question: how about the affidavit of a dead person, can it be accepted? I’m just curious. DBL:In evidence, you will learn that there can be many uses of documents. As to the substance on what the affiant has said on the affidavit, the content, it may no longer be admitted as evidence in order to prove the truthfulness of the narration of facts in the affidavit. But, it may be a proof that at one point, that dead person has executed an affidavit done. Kakuha mo class? Proven nga naay affidavit pero d na maprove if tinuod ba ang sulod sa affidavit. The judge may consider it, but he may be questioned if ever because in such case, he will be admitting evidence which is hearsay)

Right to be Heard, you have already studied this. Right to present evidence and be present in the trial. Last time we ended to the matter to the right to have counsel. We also talked about the duty of the judge to afford the accused every opportunity to hire his own counsel. This right may be waived, I’ll show you the exact wordings of the Rules of Court later on a valid waiver to right to counsel. But first, what is trial in absensia? Of course, it is the trial conducted in the absence of the accused. It is allowed provided the conditions mentioned earlier are complied with. First, dapat nanay arraignment. Kung wa pa arraignment, dapat i.compel nimo ang accused to be present to be arraigned. That is why we said that arraignment would require the presence of the accused. And that’s one of the instances where the presence of the accused can be compelled. Second, the accused must have been duly notified of the hearing. Of course, to afford him of the opportunity to be present. Third, kay absent man cya, dapat ang reason nya kay unjustifiable. So trial in absensia may be conducted. Why is it important to comply with the conditions? Because as a rule, there should be the presence of the accused in every proceedings but that is a right where the accused can waive.

And then, for purposes of requiring the attendance of the accused, you should take note of the instances under which this can be done. First, arraignment, as mentioned earlier. Second, for positive identification. So that means for example, the accused has not posted bail and therefore there’s no proof of identity in the record of the case, then you can ask the court to issue a warrant of arrest,

properly termed as bench warrant, so that the accused will be compelled to appear for purposes of identification. But for many cases, the accused may have already posted bail and with this posting of bail, he should have already pictures, kanang mugshots. So instead of asking the witness to personally identify the person of the accused, which you may have seen in the movies. Positive identification is an element of the evidence for the prosecution that the person identified is really the accused. Third is promulgation, as I have said earlier.

Can the right to be heard be waived? Yes, I think someone mentioned here the standard in waiving this right. That he can properly protect his rights without the assistance of the counsel. Ayaw nang he can properly defend kay lisud na, protect his rights lang. It’s for the court to determine that.

Then we go to the right to be informed of the nature and cause of accusation. We have learned that this is accomplished during the arraignment. You know that in the arraignment, basahon ang information, indictment, and the accused is asked to state is plea, whether guilty or not guilty. I will to you the requirements of the sufficiency of information, this is the rule: “It is the description, and not the title of the offense that controls”. Pananglitan d.i class, ang title sa offense niya is..dba there are various ways that the crime of estafa is commited? Naay abuse of confidence or thru deceit. What if the title of the case says “People of the Phil vs. Juan Dela Cruz for Estafa under Art 315 of the RPC, par 2, kanang deceit, for example”. Unya ang body sa information, ang iyang allegation didto kay mupoint to Estafa thru Abuse of Confidence, rather than Deceit. May the accused claim that his right to be informed of the nature of the accusation had been violated? Because what if you are really convicted to Estafa thru abuse of confidence where the title of the case stated Estafa thru deceit. Kabaw nakas tubag, it is the description of the body that governs, not the offense. So i.disregard rana sir? Yes, it may be disregarded. In fact, during the trial, it may be amended. Because it is the body that governs, not the title.

Conviction cannot be made on crime not charged. But may an accused be convicted of a lesser offense as that of the crime charged against him? Where did you learn that? What is important is all the elements of the lesser offense are all subsumed, covered in the greater offense. So if the charge for example is Serious Physical Injuries but the evidence will show that it is only Slight Physical Injury, then there is no violation of the nature and cause of accusation right. What’s the rule now on aggravating and qualifying circumstance? In the past, if the information fails to allege the qualifying circumstance, but was proven in the trial, it may only be appreciated as generic aggravating circumstance. That’s the rule before. Karon giklaro na. If not alleged in the complaint, cannot be appreciated dayon even if proven during the trial. Again, it is part of the right of the accused to be informed of the nature and cause of the accusation.

This is the mandate of Rule 116 of ROC on the Sufficiency of the complaint of the information: “A complaint or information is sufficient if it states the name of the accused, the designation of the

offense by the statute, the acts or omissions complained of constituting the offense, the name of the offended party, the proximate time of the commission of the offense(mao nang usually, “on or about” jud na ang inyong makitan), place where the offense was commited(dili kinahanglan specific, importante lang na masud sa jurisdiction sa court na gi.file.an).

For the cause of action, you go to Sec.9 Rule 110 of ROC in relation to the case of Lacson vs. Exec Sec. (read nlng section 9). Rule of thumb, the recital must be of facts, and not of law. It should not be a conclusion of law. Kung muingon ka na “the crime was committed in the discharge of their functions”, d mana conclusion of fact, conclusion of law mana. How will you know that it was done in the discharge of their functions? You must state there what circumstances that constituted the commission of the act in relation of the discharge of their function. Actual recital of facts of the complaint in the information.

6.) RIGHT TO MEET WITNESS FACE TO FACE

- This does not mean though that the accused himself should meet the witness face to face. It can be done of course by or in fact in most cases, and it should be through the counsel.

How is this accomplished?

You have your RIGHT TO CROSS-EXAMINATION.

Unsa man na ang cross examination?

The prosecution will present the witness. So he is the witness for the prosecution. The prosecutor will conduct examination to prove his evidence in chief. That is DIRECT EXAMINATION.

So di ra mangutana ka… xxx nag present ka sa evidence in chief. Witness of the prosecution.Ang Defense after sa direct examination will conduct the CROSS-EXAMINATION.

The purpose of which is to test the truthfulness, veracity, credibility of the testimony and the materiality and competence of course of the testimony of the prosecution. Mao na gitawag na CROSS kay ang lain na lawyer ang mung examine. That is cross-examination that compiles with the right of the accused to meet the witness face to face.

That is why an affidavit for example, not testified in court shouldn’t be admitted in evidence. Ngano man?Unsaon man nko pag cross-examine na iya ra man papel ang gisubmit sa court. How could I cross-examine the paper? Di ba? He should be instead IN THE WITNESS STAND.

xxx

Question: is cross-examination only limited to the direct examination?

Rule: Cross examination should be limited to the direct examination.

Exception: If the purpose is to discredit or question the credibility of the witness, then any question related to his credibility will pass.

Example: Mr.Gapanas, witness in the rose pharmacy.

Atty: Mr. Witness, could you honestly say in the court that on one point you have never been convicted in a crime?

Prosecutor: Irrelevant. Not covered by the direct.

Judge: Is there a purpose for your question?

Atty: Credibility, your honor.

Judge: Why? Is there evidence that he committed a crime, that he was convicted with a crime?

Atty: Yes, your honor.

Judge: Would this test the credibility?

Atty: Yes, your honor. Again Mr.Gapanas, would you tell this court whether or not you have been convicted of a crime?

G: Yes. Yes.

Atty: And is it not that you have been convicted of falsely testifying in court in 1999?

G: Yes.

Atty: And is it not also correct that you have been convicted of the crime of forgery?

G: Yes sir.

Forgery, falsely testifying, naa pay estafa… What is the purpose?

You know class; the CREDIBILITY OF EVIDENCE SHOULD COME FROM:

a. A credible witnessb. The testimony itself must be credible (believable)

So ikaw na witness dapat credible ka, believable ka. At the same time ang imo gisulti must be credible. As if naa na an gduha, you are a credible.

Credible ka because you are a priest, pastor or the pope; dali katuohan of course because of your status in the society. That does not necessarily follow that your being credible and ang imo sad testimony is also credible. is also separate.

Example:

Atty: so you are saying that the accused killed the victim being using his own fist?

W: Yes sir.

Atty: How did he do that?

W: It was so quick sir but I just saw the accused making a motion like this and like this (boxing) and the victim fell and he died instantly.

(Pag-examine medico-legal) iya jaw nabalhin sa pikas.

Medico-legal: Probably resulted from a heavy object.

Ang witness kay credible hah, kay M.A. o doctor cya og theology, pero ang sa iya testimony kay ang nakapatay kay komo. Dili sad katuohan because of the physical evidence. The truth diay aning kasuha kay gitagakan diay cya og bato pagkahuman og sumbag. See, the testimony must also be credible, other that the witness himself must is credible.

Anyway, the same is true kanang mga medical certificate or any certificate for that matter or that anyone who issues an affidavit, who certifies a document bahala na kung kinsa na sila basta pag ingon na document whether certification or affidavit is submitted in court, siya mismo must appear para ma cross-examine. There many cases that was acquitted because of that.

Direct examination

Rule (under the Rules of court): one witness, one day rule. Direct examine ang witness karun dapat on the same day ang pikas counsel kay mung cross examine napa ra wala nay delay. Pero because of the clogged dockets of our court pag take effect anang rule (6-7 years ago) grabe kayo ka strict sa mga judges. So nig ingon na do you have a witness next meeting? Yes. Ask name if we may know who is the witness para maka ask name ngano siya mung testigo. Maka check name if “expert” (not the true expert) witness siya like Jessica Alfaro, professional witness. Sige lang balik balik until they believe their lies. After naa kay mahuman name tig alas 12 ala una sa hapun kay 20-30 cases man naa pa dyud 10 witnesses. Direct examination na mahuman og 30 mins to 1hour. Naa pa dyud mga abogado na “tiguwang na hinay”.

So unsa na nahitabo karun class? Ang direct examination karun, man ang cross-examination sunod nana hearing. Man dili naman mung tungha ang witness na gi direct. So, dili siya ma cross.

What will happen to the DIRECT TESTIMONY THAT WAS NOT SUBJECT TO CROSSED?

It depends on the reason why wala siya katungha. If it is unjustifiable refusal, to attend despite of notice and hearing, the direct testimony will not be admitted as a testimonial evidence.

TESTIMONY NOT SUBJECTED TO CROSS EXAMINATION ARE EXCLUDED.

Sayang, of course saying.Because of the Right of the accused to meet the witness face to face.

Sir, IF NOT COMPLETED ANG CROSS-EXAMINATION. Depended sad. Witness died pero naka start na iya cross-examination?

Valid to the extent of the cross-examination.

Mao bitaw tong naka bati sa atong systema. Delay delaydelay... after direct examination, threat to witness… xxx

Right to be present during trail is modified in Trial in absentia rule.

PP vs. Givera:

Oral testimony may be taken into account only when it is complete, that is the witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent.

7. Right to COMPULSORY PROCESSES

- The right to request THAT WITNESSES BE SUBPOENAED AND EVIDENCE BE PRODUCED IN COURT.

Why? To enable the accused to be able to present evidence with fairness, because you know, the playing field is not balanced. To level the playing field. The accused is going out with no less than the state and its resources (prosecutor – People of the Philippines, NBI, CIDG, etc.) It’s easy for the prosecution (state) to collect the evidence. Ikaw accusado, unsa ra man imo? “with God as my witness” raka kotub. xxx so to be able to do that is to give the accuse the right to compulsory process.

Pwede siya mung request sa judge that a subpoena be issued compelling the witness to appear in court.

Theoretically, nana siya na right pero in litigation as a matter of practice, we don’t do that a lot. We don’t compel witnesses. Ngano man? A compelled witness, you don’t expect to cooperate with you. You don’t expect him to give favorable testimony.

In some parts of Europe, di ka pwede makigstorya sa imo own witness. Saatopwedena.xxx

There is that right(compulsory processes) but it is not always availed of because you don’t expect favorable testimonies for the accused.

In any case, naa man sad caso na na mag involve og documents. Kana pwede.

SUBPOENA AD TESTIFICANDUM – to testify

SUBPOENA DUCES TECUM – to testify and to bring the documents.

You know for a fact na kana na document kay naasa office sa government. Dili naman na nmo kinahanglan I rehearse kay only to bring the document naman.

8.) RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL

Delaying is not incompatible to the right to speedy trial, provided that the delay is with reason. What is important is that delay is not unreasonable.

PP vsGines. Basis of the delay: eye operation.

Nelson Imperial case. Natural ma dugay dyud ang sa case kay sige og absent ang prosecutor kay sige man sad sila og file og certiorari, kinahanglan pa iresolve. So basta lang ang delay is not attributable to the state but due to the causes beyond the control. Ok rana ang delay.

Remember, why is the right to speedy trial is important? Because in violation of the right to speedy trial, a case may be dismissed because of reason of that. And don’t you know that a dismissal of the case by a violation of that right will allow DOUBLE JEOPARDY to set in. Meaning the case cannot be re-filed, cannot be reinstated anymore. The other ground for a dismissal where double jeopardy may set in is where a case is dismissed as a result to a demurrer to evidence filed by the accused.

Demurrer to evidence – the accused will file that motion on the basis that there is not enough evidence for his conviction. Human na present of evidence ang prosecution. DOUBLE JEOPARDY.

Right to privacy and alleged prejudicial publicity. We’ll start from here on Saturday and proceed to the next rights, especially DOUBLE JEOPARDY. You have to take note of that.

RIGHT AGAINST DOUBLE JEOPARDY

“No person shall be tried twice for the same offense.”

Because it says double jeopardy, the only way it can be invoked is when you have a first jeopardy and a second jeopardy. Naa nay technical reason. The first jeopardy must have already attached before you begin talking about the second jeopardy. So you have to talk about first jeopardy before you talk about second jeopardy. This means that once there is a first jeopardy, and there is a 2nd jeopardy, the second case must be dismissed for violation against the right against double jeopardy.

If you know someone who has faced a criminal offense, the experience is horrifying. Di lalim. Imagine, its his liberty that is at stake, labi na dunay death penalty. Not to mention the humiliation that one brings to his person, family, friends and community as a result of the criminal prosecution. And after the termination of one, you vex him again? Round 2? It’s inhuman class, for a state not to provide a rule of double jeopardy. A similar rule in civil case is Res Ajudicata/ Res Judicata. At least in civil cases, noble man gihapon ang intention diha- there should be an end to litigation. That’s the only way we secure property rights of individuals. How do you secure rights of properties kung every now and then it is under litigation? A litigation that will never end.

If the purpose of res judicata is to put an end to litigation, far more important is the purpose of double jeopardy. This is not just to

protect property, but LIFE itself. So that is the idea of double jeopardy.

How do you evaluate if there is 1st jeopardy? There are elements:

1. there must be a valid complaint. Naa pajui cases class na dritso sa court, you don’t have to go to the fiscal especially in municipalities – dritso sa court.2. Filed before a competent court. 3. There must be a valid plea – mao na nay arraignment. So walay double jeopardy kung wa pai arraignment. If you are really for truth and genuine admin of justice, never fear to speed up a criminal proceeding because when this case will be dismissed, naa na ang 1st jeopardy. And if they file a case, double jeopardy na. 4. Aquittal/ conviction/ dismissal of complaint without express consent of the accused.

Naa gani nang 4 then naa na ang 1st jeopardy.

So kanang situations like this one: file ka og information didtos fiscals office. Why do you file a information before the fiscal’s office? Why not in court dritso? Because it’s the fiscal who actually files a criminal action in court. What will happen in a fiscal’s office? Conduct og preliminary investigation. For cases 4years 2 months and 1 day and above, matter of right ang preliminary investigation. Kung 4 years 2 months and below, preliminary investigation becomes optional on the part of the fiscal. What are the possible scenarios there? (1) the case gets dismissed (2) the case prospers and the fiscal prepares the info and files it in court.

What if the case gets dismissed, may another complaint be filed by the complainant before the fiscals office? The same crime, act or offense. Will that amount to double jeopardy? Of course it is impossible for double jeopardy to attach cos wa pa gani na abot sa court, naa pa gani sa fiscals office. Valid complaint or information filed in competent court. Aside from that, naa paman gani requirement of valid plea. As I have said, you take note of all of this to know if the 1st jeopardy has already attached. It can be filed as many times as you want cos wa pamai double jeopardy.

Validity of complaint – specific allegations, name of the complainant etc.. and prepared by the fiscal para validCompetent court- a court which has jurisdiction of a case which means that if this case had been decided even if naabot sa point na ge acquit but made by a court that has no jurisdiction of a case kay d na pwede (in criminal cases, venue is jurisdictional. So the court where the crime has been committed will only have jurisdiction over the case) Valid and standing plea – a plea that has not been withdrawn. May an accused refuse to enter a plea. Yes, it will not invalidate the arraignment cos under ROC if an accused refuses to enter a plea, a plea of not guilty will be entered into the record. So refusal to enter a plea is a plea of not guilty – sometimes but youll learn that later.Acquittal – remember this is immediately executor. There’s no way a decision of acquittal will ever be reversed. the only way it can be done is when you allege grave abuse of discretion amounting to lack or excess of jurisdiction. But that is highly exceptional. It happened only one time in Lagman case. The judgment of acquittal can never be appealed. But what can be appealed is the civil aspect of the case. It is not violation of double jeopardy of you appeal the civil aspect of the case.

Now what probably is confusing class is dismissal of the complaint without the express consent of the accused. Naa d.ay sir dismissal other than acquittal? YES. There are a lot of possible reasons when the court will be compelled to dismiss a case. BUT whether or not the first jeopardy will attached will depend on the express consent of the accused.

FIRST JEOPARDYELEMENTS:

1. Valid complaint or information 2. Filed before a competent court3. Valid plea4. Termination of case- Acquittal - conviction - dismissal of complaint without express consent of

the accusedEXCEPT ON TWO INSTANCES:- dismissal based on violation of the right to speedy

trial- insufficiency of evidence

There are two instances by the way as an exception. Unsaon mana sir, unsa may example of dismissal without the express consent of the accused? Pwede man. Mo ingon ang prosecutor, “Your honor we will be looking for the private complainant.” Mo.ingon dayon ang court, “So what are we going to do in this case? We will wait for the private complainant? “ The court cannot wait, in fact time time waits for no one. Dba. “I hereby order you whether or not you will present a witness next hearing. Kung walay witness this case is dismissed.” A dismissal can either be the merits or not on the merits. In this case,this is not a dismissal on the merits and this is where you need to know whether the dismissal is with the express consent of the accused or without the express consent of the accused. Pananlitan motunga na ang private complainant and now willing to testify, ingon dayon sa Fiscal, “Fiscal Ok nako, naayo nako, nasakit ra ko”. May a case be refile for example? This is a dismissal without the express consent of the accused. Correct? So first jeopardy wala ni attach. That is why very important, law practitioners if you want to settle with the accused, mo.ingon ang akusado bayran lang ni nako ug 100php pero installment. So pila mani katuig?100 thousand, taga.i lang ko ug 5 yrs. Sige na lang luoy man. In the meantime while waiting for the full payment within a period of 5 yrs, unsa may buhaton nimo sa case? the case will have to be dismissed. Usually it is called probational dismissal. As a matter of practice the court will asked the accused to make an express consent. Ngano man? It is for the benefit of the private complainant, kay kung di siya mo honor sa iyang commitment to fully pay ma.reinstate ang case. wa may double jeopardy. Why? Because it is done with his express consent, meaning there is no double jeopardy because the first double jeopardy will not attach if the dismissal is with the express consent of the accused.

BUT there are two instances where although it is with the express consent of the accused there could still be double jeopardy:

1. if the dismissal is based on violation of the right to speedy trial; jurisprudence has it that if this is the reason for the dismissal of the case it shall be considered dismissal of the merits and it has therefore the effect of an acquittal which is therefore immediate executory.

Let me repeat that. If the dismissal is with the express consent of the accused there is no double jeopardy. In two instances however, even though it is upon the expressed consent of the accused there is still double jeopardy: 1) is the dismissal is based on violation of the right to speedy trial. For one it is usually in fact initiated by the accused. Siya man ang usually mo.move, “I move your honor that the dismissal of the case for the violation of the ground that there is a violation of the right to a speedy trial. For five times already the prosecution has failed to present a single witness”. Dba. Dismissed. Kinsay nagmove? Accused! It is with his express consent. Is there double jeopardy? As a rule unta kay with his express consent naay double jeopardy but here it is an exception because although it is with his express consent there is no double jeopardy. 2) when it is dismissed in the basis of insufficiency of the evidence. There is an issue in the book of Bernas regarding in the second instance. Kabaw ka in actual practice a case will be dismissed to a ground of insufficiency of evidence if the accused files a demurrer to evidence. Unsa manang demurrer to evidence? Motion na from the accused upon na sa iyang express consent. Dba. Mao man gyud unta na, “upon the express consent”, ana-on tan a pagdiscuss. But then again even if it is with his express consent, dismissal of the case by reason of insufficiency of evidence even if with his express consent of the accused, it is dismissal on the merits. Ngano man Insufficiency of evidence? Are you familiar with demurrer? As I have said after the presentation of evidence by the prosecution.Prosecution: “Your Honor, we are formally offering our exhibits..etcetc.” “You honor we move for the admission of the exhibits to form part of the evidence for the prosecution”. Judge: “Alright the evidence marks as exhibits A-Z are hereby admitted as evidence for the prosecution.” Prosecution: “With the admission of the evidence for the prosecution, you Honor we rest our case.”Pag.ingon gani ug “we rest our case”, that means it is the term of the defense to present and evidence. BUT the defense or the accused has the option of not presenting evidence at all. Remember! The burden is with the prosecution. That evidence within 15 days after resting ang prosecution, mo.move siya ug dismissal of the case on ground of insufficiency of evidence. Pwede decidan ang kaso on the basis of evidence of the prosecution without regard any evidence submitted by the accused. If granted ang motion, maghearing of course oral argument whether or not indeed evidence is insufficient. The dismissal is with the express consent upon the motion of the accused yet it is the dismissal on the merits and therefore there should still be double jeopardy.WHAT IS A DEMURRER TO EVIDENCE? It is a motion to dismiss the case filed by the defense after the prosecution rests on the ground of insufficiency of the evidence of the prosecution

It has been said that a motion to dismiss under the Rules of Court takes place of a demurrer, which pleading raised questions of law as to sufficiency of the pleading apparent on the face thereof In the same manner as a demurrer, a motion to dismiss presents squarely before the court a question as to the sufficiency of the facts alleged therein to constitute a cause of action

This is the first kind of double jeopardy because if you look at the constitution provision on double jeopardy it is either that the person or the accused is prosecuted under statute in the first jeopardy and also against another statute. Statute no. 2 but it does not mean that it is a different statute to the other, ang buot pasabot ko lang class na ang first jeopardy is the bases of the statute and the other one is on the bases of a different statute. The test of a second jeopardy:

SECOND JEOPARDY1. Sameness of the offense (means similarity in the

evidence required in conviction)2. 1st offense is attempt or frustration of the second

offense3. 1st offense is necessarily included the second offenseEx. Homicide then acquitted then sue for parricide

1. Sameness of the offense Focus on the word offense because the word offense has a different meaning. You have been acquitted of murder, under the RPC manang murder under Art. 248 then a second jeopardy on the basis of still murder is the same offense. Ngano man? Punished in the same RPC. Ang problema an iron class kay if the first jeopardy is estafa punished under sec. 315 RPC, unsay usual scenario anang estafa? Issue ug cheque walay pundo or closed account. Usually estafa is committed when there is deceit and the other one is when there is grave abuse of confidence. In the case of postdated cheque in estafa is required that the postdating or the issuance of the cheque moves the victim to part with goods or money. Mao bitaw na the usual term used as element kay deceit lage ang element dapat “kaliwaan”. Issue ko nimo ug cheque, mao pay pagdeliver nimo sa items and that if not had delivered the items to me that I have issued the postdated cheque. Correct? In terms of bouce cheque ni siya by reason of insufficiency of account or closed account then there is estafa committed. What if wala na-establish in the estafa casethe element of kaliwaan ining exchange of the good then the cheque was issued? It is established d.ay class that the cheque is issued as a payment of a pre-existing debt. Nareceive na niya ang goods gahapon, Makita sa delivery receipt uya on the folloing day usa siya ni.issue sa cheque supposedly as payment. Wa manay estafa class because it is a payment lf a pre-existing debt, walay deceit ana involve. But there is a violation of BP 22. If you are for example charged of violation of BP 22, RPC statute, BP 22 is also a statute. That test the sameness of an offense. The same ba ang offense? NO. because 1 is punish in the RPC and the other is punish in a different statute. Kanang sameness of the offense means there is similarity in the evidence required for conviction. Naa ba d.ay sameness? Na ang BP 22 wa mana ngrequire ug deceit and kaliwaan. The gravamen of an offense of violation in BP 22 is a mere issuance of a bouncing cheque, that’s all, with consideration of course. This is

shown by the fact that it is punished by a different statute. Walay double jeopardy kung different statute.

2. 1st offense is attempt or frustration of the second offenseWhen you say offense belonging to one statute and most of the offense is in the RPC. The concern in here class is the 1 st offense is either the attempt or frustration of the second or vice versa. Meaning there are different stages in the commission of a crime, ang kiha kay frustrated murder, acquitted siya sa frustrated murder. Gikiha ug usab after sa acquittal g.usab niya,unsa man na kaso? Attempted murder na. unsay different ana? Kay ang usa frustrated and the other one is attempted. APIL. Whether it is the attempt or the frustration of the other. That is still covered by this 2nd jeopardy.

3. 1st offense is necessarily included the second offenseOffense gihapon belonging to the same revised penal code. Unsa mana?kiha nimo ug parricide, acquitted. Wala na establish sa prosecution gi acquit. Kiha napud ug usab, nikiha ug homicide. Unsa man d.ay ng homicide? What is the important element of homicide? Killing. Dba. Is homicide necessarily included in parricide? Of course. Dili kinahanglan na exactly the same because of the different instances.

2nd kind of double jeopardy is:Sec. 21, Art. IIINo person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Ang test here diri sa 2nd kind is when the 1st jeopardy is either a statute and the 2nd is ordinance or vice versa pwede. Basta ang pairing class kay kini 1st kind you have statute to statute and the 2nd

kind is statute to ordinance. In the first kind the test is sameness of the offense. What is the similarity required if it is the statute and ordinance? Sameness in act. Naa nay double jeopardy. I have been connected in a City Council for 6 yrs for BOPK. I serve there as a consultant of the laws and governance for 6 yrs. Nya nay nakit.an nako na, kini gud mga konsehal nato ilang determination of a successful councilor is padaghanay ug ordinance. Nya ang almost every act endeavored covered mana by statute. Kabaw ka unsa ilang himuon? i.cut ang paste mana nila ang statute himuon nila ug ordinance. There as a time 2-3 yrs nga n.abot sa akong table an ordinance dealing with a dangerous drug. Ang penalty maximum imposed to a city ordinance is 5000php ang prisonment kay 6 mos or 1 yr. ang penalty can never be higher. Karon kung akoy abogado sa akusado apprehended with drugs, you know what I’l be doing? Estoryahon nako ang fiscal, “ ayaw ko chargei ug Dangerous Drug Act ha. Chargei ko ug ordinance.” Dali.on gyud. Bayad man. Pag.abot didto sa korte tanan convicted. Karon filan ka ug violation of the Dangerous Drug Act ang penalty kay reclusion perpetua. Nawa na.

Ganiha walay double jeopardy kaw walay sameness of the offense, kay nganong walay sameness of an offense kay 1 is punished by a statute and the other is punished by a another statute. It becomes the same offense if punish ang 2 crimes punished by the same statute and the same offense we are talking about the RPC here. Dinhi kay sameness of act man, convicted naman sa ordinance by possession of drugs, di nako maconvicted under the Dangerous Drugs Act even if different law to siya. Unlike diri na walay double

jeopardy, didto naa na and they hated me for that because for several times daghan kaayong mga councilors na ngsige lang. bisan kanang mga Bldg. Code himo sad sila, unya mapugos ka ug lower sa penalty. Tan.awn nimo ang Bldg. Code dagko kaau ang penalty unya ari nimo ibutang sa Ordinance gamay ra ang penalty. Kanang mga ordinance about discrimination of gender unsa pa na diha. Unya pila may penalty na ma.impose? because very few knows that if it is the ordinance or a statute sameness of the act test. Remember! Ang act may be punished by a several statute kung puro na sila statute way problema. No double jeopardy kay different man pro kung ordinance ug statute the same act barred. Take note of the doctrine of a Supervening Event! Not a violation of double jeopardy. Pananlitan file ka ug kaso frustrated murder, file ka ug kaso, gidunggab nimo with the use of kitchen knife namatay pagkataod2 during the pendency of the case or another na terminated ang case. nahimo na nuon ug consummated ang frustrated murder because of a supervening event. Pwede ba 1st gikiha nimo ug serious physical injury unya gikiha nimo ug murder? So the doctrine of supervening event will not barred the filing of another case as a result of a commission of the crime.