Arrest Defined:

In document Reviewer Crim (Page 52-57)


IV. Arrest Defined:

1. [Based on Rules of Court] The taking of a person in custody in order that he may be bound to answer for the commission of an offense (Sec. 1, RRC)

2. [Based on Jurisprudence] A restraint on person, depriving one of his own will and liberty, binding him to become obedient to the will of the law (Larrañaga v. CA, 92 SCAD 605) How made:

As to the manner of enforcement, by:

1) Actual restraint, or

2) Submission to the custody of the person making arrest As to the presence or absence of judicial order:

1) By virtue of a warrant, or

2) Warrantless arrest, in cases allowed by the Rules As to the person arresting:

1) Arrest by peace officer, or 2) Citizens arrest

When warrantless arrests allowed:

1. Inflagrante Delicto arrest – when in his presence, the person to be arrested has:


Is actually committing an offense Is attempting to commit

Translation: In flagrante delicto [latin] – Literally, “caught in the act of wrong”.

2. Hot Pursuit arrest – when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person arrested has committed it.

Tests in determining probable cause based on personal knowledge:

Must be based on the senses, i.e. 1) Sight

2) Hearing 3) Smell


A. The arresting officer must have personal knowledge of the commission of the crime through his senses.

B. The term “personal knowledge” excludes hearsay as a basis for probable cause.

C. There must first be a lawful arrest before any search may be conducted. The process cannot be reversed (Dissent of Chief Justice A. Narvasa, People v. Malmstedt). Exception: in case of valid warantless searches (Majority opinion, People v. Malmstedt, 198 SCRA 401).

D. For purposes of arrest – Officer may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose (Sec. 11, RRC).

E. For purposes of search and seizure – he cannot break into any building or enclosure without violating the right of privacy. Exceptions: 1) When there is consent (Dissent of Justice I. Cruz, People v. Evaristo, 216 SCRA 431). 2) When there is a warrant.

3. Arrest of fugitives from justice – persons who has escaped from a penal establishment, place of confinement etc. while serving sentence, temporarily confined, or case is still pending – may be arrested under the theory that “he is engaged in the commission of a continuing offense” (Parulan v. Director of Prisons, 22 SCRA 639).

Methods of Arrest:

I. With warrant, by officer:

The officer shall inform the person of:

1) the cause of the arrest 2) fact that warrant exist Exception: 1) When he flees or forcibly resist before 1 & 2 is completed 2) When the giving of info will imperil the arrest

II. Without warrant, by an officer and by private persons:

Inform the person of 1) authority and cause of arrest [if person arresting is police officer]

2) intent to arrest and cause [if person arresting is private person]

Unless when the person to be arrested is either:

1) Engaged in the commission of the offense 2) Is pursued immediately after its commission

3) Has escaped, flees or forcibly resist before the officer or the private person making the arrest has the opportunity to inform him of 1 & 2, or

4) When the giving of info would imperil the arrest

Tests in determining lawfulness of USE OF LETHAL FORCE by the arresting officer:

1) Test of reasonability – conduct of the arresting officer is examined.

Where the precipitate action of the arresting officer resulted in the loss of a human life and there exists no circumstances whatsoever justifying the shooting of a person who is asleep, even if he is a notorious criminal – condemnation, and not condonation should be the rule (People v. Oanis, 74 Phil. 257).

2) Test of necessity – conduct of the person arrested is examined.

Where the arrested person attempts to flee, struck a policeman with his fists, draw a mess knife and attacked another policeman, the arresting officer is not required to afford him a fair opportunity for equal struggle. A police officer, in the performance of his duty, must stand his ground and cannot, like private individual, take refuge in flight. His duty requires him to overcome the offender (US v. Mojica, 42 Phil 784).

V. Bail

Kinds of bail bonds:

1. cash bond 2. property bond 3. surety bond 4. recognizance Defined:

The security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions of law.


The right to bail only accrues when a person is under custody. Court must have jurisdiction over the person of the accused either thru: 1) arrest, with or without warrant, or 2) voluntary surrender.


When the person under investigation cannot personally appear because he is hospitalized but applies for bail through his counsel, he is deemed to be under the constructive custody of the law (Dinapol v. Baldado, 225 SCRA 110, Paderanga v. CA, 247 SCRA 741).

Where to apply?

In the court where the case is pending (if not yet filed, may be filed before any court).

Conditions for bail:

See Sec. 2, Rule 114 Bail, a matter of right:

1. Before or after conviction by MTC, MTCC or MCTC

2. Before conviction by RTC of an offense not punishable by death, reclusion temporal, or life imprisonment Bail, a matter of discretion:

1. Upon conviction of RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment.

2. Before conviction for capital offenses [punishable by death], or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is not strong. (Bail is neither a matter of right nor a matter of discretion only in cases where the evidence of guilt is strong).

Bail granted in capital offenses despite findings that evidence of guilt is strong (Cited in Cruz, Constitutional Law, 2003 Ed.):

De la Rama v. Peoples Court, 77 Phil. 461 – accused was granted bail due to tuberculosis that requires confinement to the hospital.

People v. Sison, GR 398, September 19, 1946 – humanitarian reasons considered by SC.


1. The right to bail flows from the presumption of innocence. This is so because accusation is not synonymous with guilt.

2. In deportation proceedings, bail is not a matter of right but of discretion on the part of the Commissioner of Immigration and Deportation (Harvey v. Defensor-Santiago, 162 SCRA 398).

3. Bail is not available to military facing court martial proceedings (Commendador v. De Villa, 200 SCRA 80).

4. In extradition proceedings, bail may be granted provided the accused undertake to submit himself to the jurisdiction of the court and provided further that he is not a flight risk (Govt. of Hong Kong v. Judge Olalia, 2007) VI. Rights of the accused

Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with a right recognized by law (Art. 6, NCC).

In all criminal prosecutions, the accused shall be entitled to the following rights:


P – resumed innocent

I – nformed of the nature of the cause and accusation P – resent in person and by counsel

T – estify in his own behalf

E – xempt from being compelled to be a witness against himself C – onfront witnesses

C – ompulsory process to secure attendance of witnesses and production of other evidence S – peedy, impartial and public trial

A – ppeal

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

Hierarchy of proof [according to degree of persuasiveness]:

Absolute certainty – ultimate truth [not required in any legal proceeding]

Moral certainty – passed the test of human experience [i.e., guilt beyond reasonable doubt, conclusive presumptions]

Relative certainty – so called because a higher degree of proof exists [i.e., preponderance of evidence, probable cause, substantial evidence, disputable or prima facie presumptions]


The starting point is the presumption of innocence (See: Section 3, Par. (a), Rule 131, RRC)

It is incumbent upon the prosecution to demonstrate culpability. The burden of proof lies in the prosecution. Unless guilt beyond reasonable doubt is established, the accused need not prove his innocence.

Burden of proof – the duty of the affirmative to prove what it alleges. (Africa, The Art of Argumentation and Debate).

Absolute certainty is not demanded by the law to convict but only moral certainty.

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

Essential to avoid surprise and to afford him the opportunity to prepare his defense accordingly.

Arraignment serves this purpose by informing him why the prosecuting arm of the state is mobilized against him.

An accused cannot be convicted of an offense unless it is clearly charged in the compliant or information. Basic rule – you cannot prove what you did not allege.

3) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment.

Express or Implied waiver is renunciation to be present on that particular date only.

Escape of the accused is waiver by implication to be present on said date and all subsequent trial dates. [Fact of escape made his failure unjustified because he has, by escaping, placed himself beyond the pale and protection of the law (People v. Salas 143 SCRA 163, cited in Cruz, Constitutional Law, 2003 Ed.)].

Right to counsel is right to effective counsel. It is not enough to simply appoint a counsel de officio. Counsel must have no conflict of interest. Thus, a fiscal cannot be appointed as counsel de officio.

When an accused is represented by a fake lawyer who pretended to be a member of the bar, his right to counsel is violated, unless the accused voluntarily chose him knowing him to be a non-lawyer.

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

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

Right to testify in his own behalf:

Once exercised, the accused is subject to limited cross-examination.

If not exercised, no inference of guilt can be derived from his silence alone.

Right against self incrimination:

Intended to shield the guilty & imprudent as well as the innocent & farsighted.

Based on public policy and humanity, otherwise, the accused will be placed on the strongest temptation to commit perjury.


A. Prohibition covers 1testimonial compulsion and 2the production of the accused of incriminating documents and articles demanded from him.

B. Does not include compulsion to 1submit fingerprints, 2photograph, 3blood or urine samples, and 4others requiring a mere mechanical act on the part of the accused [Villaflor v. Summers, 41 Phil. 64, US v. Tan Teng, 23 Phil. 145, Schemerber v. California, US L.Ed. 2d 908, 89 S CT No. 658].

6) To confront and cross-examine the witnesses against him at the trial.


To meet the witness face to face (Bill of Rights, 1987 Constitution)

To enable the court to judge the truthfulness, deportment, and the appearance of the witness while testifying (US v, Javier, 37 Phil 449).

Effect of absence of right to cross examine:

When there is express or implied waiver – no effect

In the absence of waiver – testimony of the witness cannot be considered as complete and therefore cannot form part of the evidence against the accused.

Effect when witness dies:

Before he could take witness stand – inadmissible

After giving his direct testimony but before cross examination –

Gen. rule: inadmissible. Exception: where the adverse party was given adequate opportunity but failed to cross examine due to his own fault

After the defense conducted cross examination – admissible

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

“Compulsory process” refers to the issuance of the court of:

Sub-poena – for the attendance of witnesses

Sub-poena duces tecum – for the production of documents Notes:

A. If a sub-poena or sub-poena duces tecum is issued and the person named in the sub-poena refuses to appear or refuses to produce the required documents without justifiable reasons – court has the power to declare that person in contempt and may order his arrest. [People v. Montejo, 21 SCRA 722].

B. The coercive powers of the court must be employed in order to give meaning to this right.

8) To have speedy, impartial and public trial.


Justice delayed is justice as denied Impartiality:

Every party litigant is entitled to nothing less than the cold neutrality of an impartial court (Macalintal v. Judge Teh, 280 SCRA 623).

Public trial:

So that the public may see that he is fairly dealt with and not unjustly condemned in case of conviction.

So the public may know of the fact or the basis of his innocence in case of acquittal.

Note: “Public trial” and “Trial by publicity” are two different things. They are not the same. There should be a public trial, not trial by publicity.

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

The right to appeal is a statutory right but withdrawal of this right, in the absence of a valid waiver, constitutes a denial of due process guaranteed by the Constitution (Cruz, Constitutional Law, 2003 Ed.).

It is not a natural right or inherent one. The party who seeks to avail of the said right must comply with the requirements of the Rules. Otherwise, the right to appeal is lost (People v. Sabellano, 198 SCRA 196) VII. Arraignment and Plea

Arraignment: The initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and to enter a plea (Black’s Law Dictionary).

Venue for Arraignment and Plea:

Before the court where the complaint or information was filed or is assigned for trial.

Purpose of arraignment [Key: FIG] (14 Am. Jur., p. 939, GV Jacinto, Crim. Proc.) 1) To fix the identity of the accused

2) To inform him of the charge

3) To give the accused an opportunity to plead


In order for the Court to “acquire” complete jurisdiction over the person of the accused, arraignment is essential. Unless this procedure is completed, the court cannot commence trial in absentia.


Arraignment must be made in open court by the judge or the clerk Accused must be furnished with a copy of the complaint or information

Complaint or Information must be read in a language or dialect known to him Accused must be present

Accused must personally enter his plea

I. If under preventive detention

Raffle of case and transmittal of records – within 3 days Arraignment – within 10 days from the date of raffle Pre trial conference – within 10 days after arraignment II. If not under preventive detention

General rule – within 30 days from the date the court acquires jurisdiction Exception – a shorter period is provided by special law or SC Circular Rules in entering a plea:

If accused refuses to plead or makes a conditional plea – a plea of not guilty shall be entered

If accused enters a plea but presents exculpatory evidence – plea of guilty is withdrawn and a plea of not guilty shall be entered for him. Burden of proof shifts.

If accused enters a plea to a capital offense – court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability.

Pre-trial Conference:

Private offended party shall be required to appear for purposes of:

1) Plea-bargaining

2) Determination of civil liability

3) Other matters requiring his presence

In case of failure of the offended party to appear despite due notice – conformity of prosecutor is sufficient for purposes of pleading guilty to a lesser offense which is necessarily included in the offense charged.

Bill of particulars:

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

Scope of the Bill of Particular:

Bill of Particulars is a remedy for formal defects and not substantive defects.

The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definition is a Motion for Bill of Particulars and not a Motion to Quash (Rocaberte v. People, 192 SCRA 152).

[See discussion in: Elements of Complaint and Information, remedy in case complaint or information is defective, supra]

Modes of discovery:

Accused has a right against the suppression of evidence favorable to an accused which is material as to 1) guilt, or 2) as to punishment (Webb v. De Leon, 247 SCRA 653).

Suppressed evidence must be of such nature as to affect the outcome of the trial (US v. Agurs, US v. Bagley) Notes:

1) Arraignment is important for notifying the accused of the cause he is required to meet. The accused has the right to be informed of the nature and cause of the accusation against him (Borja v. Mendoza, 77 SCRA 422).

2) The existence of a plea is an essential requisite to double jeopardy (People v. Balicas)


In document Reviewer Crim (Page 52-57)