tech eng M

• Deposition of witness


  Part of a pretrial process includes getting statements from individuals who are likely to be called to testify in court
• Depositions


  • Intended primarily to find out what the other side knows
  • Completed during the fact-finding or discovery stage
  • Information not brought forth during this period is typically inadmissible during a trial
• Deposition process


  1. Prior to deposing individuals, attorneys from the plaintiffs will typically submit interrogatories or written questions to the defendants

  2. The exchange between the plaintiffs and the defense may be ongoing for an extended period of time as information is obtained

  3. During this questioning, it's quite often to ask names of those who have specific knowledge regarding the plaintiff's case

  4. If the defense intends to use expert witnesses, an affidavit describing the opinion of the expert is to be provided as part of the discovery process
• Information/Complaint


  Criminal actions, how instituted
• How criminal actions are instituted

  • For offenses where a preliminary investigation is required, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation
  • For all other offenses, by filing the complaint or information directly with the MTC, or the complaint with the office of the prosecutor
• As a rule, there is NO direct filing of an information or complaint with the RTC since its jurisdiction covers offenses which require preliminary investigation
• Who may file a complaint

  • The offended party
  • Any peace officer
  • Other public officer charged with the enforcement of the law violated
• Information


  An accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court
• Extinction of criminal liability for rape may be had only through pardon and marriage — which must occur prior to the institution of the criminal action
• An affidavit of desistance executed merely as an afterthought has no persuasive effect
• What a complaint or information must state


  • The name of the accused
  • The designation of the offense given by the statute
  • The acts or omissions complained of as constituting the offense, including its qualifying and aggravating circumstances
  • The name of the offended party
  • The approximate date of the commission of the offense
  • The place where the offense was committed
• Sufficiency of Complaint or Information

  • The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged to enable the accused to suitably prepare for his defense
  • An information validly charges an offense when the material facts alleged establish the essential elements of the offense charged
  • Objections relating to the form or insufficiency of the information must be made prior to arraignment either through a bill of particulars or motion to quash, and not for the first time on appeal
  • Failure to pursue either remedy constitutes a waiver to objections to any formal defect
  • The nature of the offense is determined by the actual recital of the facts in the complaint or information, not the caption, preamble, or specification of the provision of law alleged to have been violated
  • Aggravating circumstances, whether qualifying or generic, must be alleged in the information before they can be considered by the court
  • It is not necessary to state the precise date the offense was committed except when it is a material ingredient of the offense
  • In offenses against property, an error in the designation of the offended party is immaterial if the subject matter of the offense is specific and identifiable
  • When a motion to quash is filed challenging the validity and sufficiency of an Information, and the defect may be cured by amendment, courts must deny the motion to quash and order the prosecution to file an amended Information
  • An Information need only state the ultimate facts constituting the offense and not the finer details of why and how the crime was committed
• The indictment merely states that psychological pain and physical injuries were inflicted on the victim. There is no allegation that the purported acts were employed as a prerequisite for admission or entry into the organization. Failure to aver this crucial ingredient would prevent the successful prosecution of the criminal responsibility of the accused, either as principal or as accomplice, for the crime of hazing
• In cases of falsification of private documents, the venue is the place where the document is actually falsified, to the prejudice of or with the intent to prejudice a third person, regardless whether or not the falsified document is put to the improper or illegal use for which it was intended
• The date of commission is not even an element of the crime of rape. It cannot be considered that appellant was deprived of his constitutional right to be informed of the nature and cause of the accusation against him
• Objections as to the form of the complaint or information cannot be made for the first time on appeal. If appellant found the Information insufficient, he should have moved before arraignment either
• The qualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded but proved, they shall be considered only as aggravating circumstances
• Duplicity of Offense


  A complaint or information must charge but one offense, except when the law prescribes a single punishment for various offenses
• Exceptions to the rule of one offense per complaint/information

  • Where a single act violates two or more distinct and unrelated provisions of law, the prosecution of the accused for more than one offense in separate information is justified
  • If a single penalty is imposed, such as when various offenses can be complexed or compounded as per Art 48 of the RPC, then a single information suffices
  • Each incident of sexual intercourse and lascivious act is a separate and distinct offense that must be subject of separate information
  • Where a person was arrested for illegal possession of multiple firearms, each firearm should be the subject of a separate information because the law provides for a separate penalty for each type of firearm
• Duplicity of the offense or multifariousness is a ground for a motion to quash, but it should be timely interposed; otherwise, said defect is deemed waived
• Amending complaint or information

  1. Before accused enters plea, the complaint or information may be amended in form or in substance without the need for leave of court

  2. However, leave of court plus motion by the prosecutor, with notice to offended party, is required even if the amendment is made before plea if the amendment downgrades the nature of the offense charged or excludes any accused from the complaint or information
• Venue of Criminal Actions

  • The criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred
  • Transitory or continuing crimes where some acts material or essential to the crime occur in different places (e.g. estafa, malversation, abduction)
  • Transitory or continuing crimes where all the elements thereof for its consummation may have occurred in a single place, yet by reason of the very nature of the offense committed, the violation of the law is deemed continuing (e.g. kidnapping and illegal detention, evasion of service of sentence)
  • For illegal recruitment cases, the criminal action may be filed in the RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense
  • For perjury, venue may be at the place where the testimony under oath is given or where the sworn statement is submitted or where the oath was taken
• Preliminary Investigation


  An administrative inquiry conducted by a public prosecutor, for the purpose of determining whether there is a probable cause to believe that a crime has been committed and that the respondent is probably guilty, and should be held for trial
• Preliminary Investigation


  1. It may be initiated by a private complainant or by a law enforcement

  2. During the preliminary investigation, the parties are given opportunity to submit their respective affidavits in support of their claims and defenses

  3. The process takes place in face to face hearings before the public prosecutor

  4. The preliminary investigation may either lead to the filing of a formal charge in court, known as "information, or dismissal of the complaint
• Preliminary Investigation


  • To inquire concerning the commission of a crime and the connection of the accused with it, in order that he may be informed of the nature and the character of the crime charged against him, and, if there is probable cause for believing him guilty, that the State shall take the necessary steps to bring him to trial
  • To preserve the evidence and keep the witnesses within the control of the State
  • To determine the amount of bail, if the offense is bailable
• Determination of Probable Cause

  • An executive function, lodged at the first instance with the public prosecutor who conducted the PI and ultimately, with the SOJ
  • It is not the occasion for the full and exhaustive display of the parties' evidence
  • The right to a PI is not constitutional in nature but a statutory one, and becomes a component of due process in criminal justice
  • Probable cause requires more than bare suspicion but less than evidence to justify conviction
  • Evidence based on hearsay may support the finding of probable cause, so long as there is substantial basis in crediting the hearsay
• When courts may review findings of probable cause by prosecutor

  • When there is a capricious and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion, amounting to lack or excess of jurisdiction
  • When the prosecutor grossly misapprehends the facts
  • When the prosecutor acts in a manner so patently in violation of applicable laws and jurisprudence as to be deemed whimsical or capricious
• Probable cause


  More than bare suspicion but less than evidence to justify conviction
• Evidence based on hearsay may support the finding of probable cause, so long as there is substantial basis in crediting the hearsay
• Right to preliminary investigation (PI)


  Not constitutional in nature but a statutory one, it becomes a component of due process in criminal justice
• The right to PI is waivable for failure to invoke the right prior to or at the time of the plea
• When courts may review findings of probable cause by prosecutor

  • Capricious and whimsical exercise of judgment evidencing a clear case of GAD, amounting to lack or excess of jurisdiction
  • Grossly misapprehends the facts
  • Acts in a manner so patent and gross as to amount to an evasion of a positive duty
  • Virtual refusal to perform the duty enjoined by law
  • When he acts outside the contemplation of law
• When probable cause needs to be established

  • Preliminary Investigation
  • Preliminary Examination
  • Warrantless Arrests
  • Issuance of search warrants
• Authorized Officers to conduct PI

  • Provincial or City Prosecutors and their assistants
  • National and Regional State Prosecutors
  • Other officers as may be authorized by law
• Specific authorities authorized to conduct PI

  • COMELEC for all election offenses under the Omnibus Election Code
  • Ombudsman for cases cognizable by the Sandiganbayan
  • PCGG with the assistance of OSG for cases involving EO 1, 2 14, 14A s. 1986
• Preliminary investigation shall be conducted

  1. Complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant, his witnesses, and other supporting documents

  2. Affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence, before notary public
• Requisites for a Valid Search Warrant or Warrant of Arrest

  • Issued upon probable cause
  • The probable cause must be determined personally by the judge himself
  • Such determination of the existence of probable cause must be made after examination by the judge of the complainant and the witnesses he may produce
  • Must particularly describe the place to be searched and the persons or things to be seized
• When warrant may be issued

  1. By the RTC and MTC - Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence

  2. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause

  3. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or information was filed

  4. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information
• When arrest warrant unnecessary

  • Accused already detained via lawful warrantless arrest
  • Accused is charged for an offense punishable only by fine
  • When the case is subject to rules on summary of procedures
• Cases Not Requiring Preliminary Investigation

  • Direct filing with the prosecutor - Prosecutor must act on the complaint based on the affidavits and other supporting documents submitted by complainant within 10 days from filing
  • Direct filing with the MTC - Within 10 days from filing, the judge must personally evaluate the evidence submitted and examine in writing and under oath the complainant and his witnesses in the form of searching questions and answers