RULE 114 Bail - Dean Riano Transcript

- This is a concept not found in civil case.

- Illustration: X has been accused of homicide. An information was filed against him. The court has issued a warrant of arrest but the accused could not be found. He is as elusive as the Malaysian Airline Flight 370. X asked his lawyers to apply for bail for him. And bail was granted. Could you assail the validity of the bail granted by the court? Yes. Bail can only be given as a rule in favour of the person in custody of the law. But X is not in custody of the law as he is a free man. And as a free man, he cannot avail of bail.

Rule 114, SECTION 1. Bail Defined. — Bail is 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 hereinafter specified. Bail may be given in the form of corporate surety;

property bond, cash deposit, or recognizance.

* But is it possible or is there a theory under our Rules that grants bail to a person who is not even accused of a crime?

Bar 1994. Yes. Bail to secure the appearance of a material witness to the criminal case.

Rule 119, SECTION 14. Bail to Secure Appearance of Material Witness. — When the court is satisfied, upon proof

or oath, that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken.

What is the constitutional basis of the right to bail? The presumption of innocence.

The most popular question on the bar on bail is on Section 4 and 5 of Rule 114.

SECTION 4. Bail, a Matter of Right; Exception. — All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or releasedon recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (4a)

SECTION 5. Bail, When Discretionary. — Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.

TRANSCRIPT 10

When you study arrest, isabay nyo na ang searches Rule 126, in relation to Rule 113.

The issuance of a warrant of arrest by the court presupposes that there is already a complaint/information filed in court.

But the issuance of search warrant may be done even without yet an information filed in court. The reason why a judge conducts preliminary examination to determine probable cause after the filing of an information is to determine WON it shall issue a warrant of arrest or dismiss the case.

After a preliminary investigation and the information is filed in court the court has no obligation to conduct a personal examination of the complainant and its witness if there is already preliminary investigation because the investigation has already been done in the prosecutor’s office. So, when the information is already filed in court, the judge will merely evaluate the evidence that was used by the prosecutor in the preliminary investigation below or it may require additional evidence; but the court has no obligation to conduct further personal examination through searching questions and answers. The option to conduct by the MTC of a searching question and personal examination in writing apply only when the filing is direct. Sec.8b. that is where the personal examination is only an option.

The reason why the personal examination was given as an option in the direct filing in MTC in Sec. 8b was because there was no prior preliminary investigation. That is why it has the option to conduct a personal examination through a written searching question and answer. But the moment that there was a preliminary investigation, that option is not even granted to the court in Sec. 5 of Rule 112. The option was only to ask for additional evidence after a personal evaluation.

This is important because in the issuance of search warrant, the rule is different. Rule 126, SECTION 4. Requisites for Issuing Search Warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

- This is not a requirement in the issuance of a warrant of arrest when there is already a preliminary investigation.

Why is the court in the issuance of a search warrant mandated by the Rules to conduct an examination under oath or affirmation of the complainant and the witnesses

he may produce? Because there is yet no case filed in court. A search warrant could be issued even without a case filed. But I was telling you, the issuance of a warrant of arrest presupposes a complaint/information filed already in court that has passed a preliminary investigation. By the way, under the present rule, a warrant of arrest does not expire. There is no expiration for that found in Rule 113. What expires is a search warrant. Look at Rule 126 on the duration of a search warrant. SECTION 10. Validity of Search Warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. (9)

- This is not found in Rule 113. SECTION 6. Time of Making Arrest. — An arrest may be made on any day and at any time of the day or night.

- Compare this with Rule 126 SECTION 9. Time of Making Search. — The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.

- GR: the warrant must be served in the daytime

- Exc: the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.

Now, one of the most critical provision of Rule 126 is SECTION 13. Search Incident to Lawful Arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

When the person is lawfully arrested he could be searched.

You do not need a search warrant because the search is incident to a lawful arrest. If arrest is invalid, the subsequent search and seizure is also invalid. C.f. Pp. v Mengote

If you are a police officer being subjected to cross examination and you arrested someone without a warrant, you are supposed to say that you arrested him because either he has committed a crime or is attempting to commit a crime.

Do not say that you arrested the accused on the basis of suspicious acting or that the information was reliable because that would be an illegal arrest. If he is suspiciously acting, the valid act would be to tell the court that you stopped him and frisked him under the rule of stop and frisk rule. This is not a full scale arrest, therefore the existence of a crime is not necessary for a Terry Search. You only need a genuine reason to ask him question and to frisk him which should not be intrusive but only tapping his outside clothing. But when you tapped his waist and there was an outline of a gun there is now a probable cause to open to his waist and ask him whether that gun is licensed or not. If there is no proof that he is licensed then there is now a reason to arrest him for illegal possession of firearms.

Remember Sec. 4, Rule 126, requirements for the issuance of search warrant. Those requirements are not mandatory for the issuance of a warrant of arrest.

There is a doctrine in jurisprudence that says that when you lawfully arrest a person you can lawfully search him. But when you lawfully search him the place to be searched must only be that place within his immediate control. Because of this rule, many law enforcement officers have been charged administratively.

Let’s say you arrested me lawfully due to a warrant of arrest. I can be searched my person and in my immediate control where I can search for weapons or destroy evidence. Suppose the officer went to the 2^nd floor and made halughog and his warrant is only a warrant of arrest, can you do that upstairs and search? No, that is no longer within his immediate control.

He cannot reach for weapon in the second floor when he is in the ground floor handcuffed. C.f. People v. Lian Siri, People v. Valerozo – when handcuffed, you have no authority anymore to search the cabinet even in the sala where he is because he cannot reach for a weapon or evidence to be destroyed. But if you are a law enforcement officer do not put that in record that he is handcuffed. ;)

Are there instances a search incident to a valid arrest where there is no need for a search warrant? Yes.

1. When the search was with consent.

But you can argue that there was no full consent since while there was no actual intimidation, there was a moral pressure in the presence of heavily armed people.

2. Plain view doctrine

- Kitang kita ang contraband. The officer must have the right to be in that place and not a trespasser.

- Illustration: R was serving a warrant of arrest to the accused. R saw in the living room of the accused. Upon arrest, R, a trained officer, happened to see on the table, shabu in 10 sachets. R got it and duly presented it to his superiors. The accused was also sued for illegal possession of prohibited drugs. Is the confiscation valid?

Yes. No need for search warrant. Plain view. It would not be plain view if hinanap sa 2^nd floor. But if pag-search sa cabinet was within immediate control of the accused and may shabu, included pa rin sa plain view doctrine since the shabu was inadvertently discovered and the cabinet was within his immediate control.

- Plain view doctrine does not only apply to the sense of sight. It could also be the sense of smell. C.f. People v.

Claudio.

3. Regulatory power of the state

- Sanitation inspector in inspecting whether the restaurants follow the sanitary rules of the government

4. Customs searches

5. Airports and transportation terminals

Is there any other else? When a wife searches the attaché cases of husband... ooh... no search warrant is necessary ^_^

Look at this. X is a known drug dealer but he always manages to be released due to technicalities. One day he was in the park and carried a bag. Then a police who knew him well suspected that there was shabu in the bag. When their eyes met, the accused evaded the police’s gaze. The police arrested him and opened his bag. He found shabu and marijuana. During the trial, the accused moved to suppress the evidence. If you were the judge, would you suppress the evidence? He was arrested for acting suspiciously and that is not a ground for a warrantless arrest. Suspicions no matter how great are not grounds for warrantless arrest and searches.

Rule 115 Rights of the Accused Right against Self-incrimination

- Can be invoked in any case where you will be possible subjected to criminal prosecution. (so, this even applies to an administrative case, legislative investigations, civil case)

- It applies to testimonial compulsions.

Illustration: Rape case. During the trial, the prosecution presented as exhibit the shorts of a male found in the crime scene and asked the accused to wear it. Accused refused to wear it invoking his right against self-incrimination. Can he do this? No. It does not involve testimonial compulsion.

We already discussed the distinction between the accused and a witness in invoking the right against self-incrimination. A mere witness cannot refuse to be a witness but an accused can totally refuse. A witness has to wait for the questions to be asked of him for him to invoke the right against self-incrimination. But if his answer would not subject him to criminal prosecution, he cannot refuse to answer. But he can refuse to answer even if the liability would only be administrative but the penalty is punitive in nature like fine.

So it is as if criminal in nature. Supposed he is asked of his commission of the crime 25 years ago, he cannot invoke his right against self-incrimination because the offense and penalty already prescribed so he cannot anymore refuse.

Remember Beltran v. Samson,

Also remember the right to speedy trial can only be invoked by the accused in a criminal case. Others can only invoke the right to speedy disposition of the case

When you are in a criminal trial and the prosecution has no witnesses against you, do not invoke the right to speedy trial without insisting first on a trial.

But normally courts will give him 3 times, 3 chances to present evidence. If after 3 chances, no evidence yet could be presented by the prosecution, on the fourth hearing you now insist on a trial. If not, then ask for the dismissal of the case on the ground of the violation of the right to speedy trial. And when your case is dismissed on that ground that is not a dismissal. That is an acquittal. The prosecution can no longer appeal. Now, suppose you are asked, X was acquitted, can the prosecution file an MR? No, for you would put him on double jeopardy. Can the prosecution move for an MNT? No, as that will put him in another danger of being convicted. Can the prosecution appeal? No. How do you question an acquittal without violating the rules against double jeopardy? Rule 65.

Show that the judge has committed grave abuse of discretion amounting to lack or excess of jurisdiction. If the court has abused its discretion gravely, the first element of double jeopardy which is the court should have competent jurisdiction is taken out of the picture. While appeal is prohibited, certiorari is not. Because when the court gravely abuses its discretion, the acquittal was rendered without jurisdiction.

And an acquittal rendered jurisdiction is not a valid acquittal.

Therefore if the acquittal is wrong, he can still be charged.

There is no double jeopardy. There is only one jeopardy.

Double jeopardy means double danger.

Rule 116 Arraignment Purpose: to comply with due process

A person has a constitutional right to be informed of the nature and cause of accusation.

The first duty of the judge in arraignment is to ask him if he has a counsel. If he has none, to ask him if he wants a counsel.

Rule 116, SECTION 6. Duty of Court to Inform Accused of his Right to Counsel. — Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de oficio to defend him. (6a) Under our present rules, can the accused be arraigned through his counsel? No. It must be personal to the accused.

How is an accused arraigned? What are the matters to be asked during arraignment? Look at Rule 116.

1. The accused is given a copy of the complaint/information.

2. Reading the same in the language/dialect known to him 3. Asking him whether he pleads guilty or not guilty.

What are the options of the accused before he enters a plea of guilty or not guilty?

a. He can file a Motion for Bill of Particulars – R116, SECTION 9. 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.

b. He can move for the suspension of the arraignment – R116, SECTION 11. Suspension of Arraignment.

— Upon motion by the proper party, the arraignment shall be suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President;provided, that the period of suspension shall not exceed sixty (60)

In document Dean Riano Transcript (Page 69-75)