Tuesday, November 5, 2013

When to File a Motion for Leave to File Demurrer to Evidence

Section 23, Rule 119 of the Revised Rules of Criminal Procedure, states:

"Demurrer to evidence. – After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to the evidence filed by the accused with or without leave of court."

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"The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt." [emphasis supplied]

In order to count properly the non-extendible period of five days, it is important to know when the prosecution is considered to have rested its case. According to the Supreme Court, the prosecution is considered to have rested its case after court has already ruled on the admissibility of the prosecution's documentary exhibits.

In other words, the five-day non-extendible period is not to be counted from the date of the hearing when the prosecution has orally manifested that it rests its case, nor from the date of the prosecution's oral formal offer of documentary exhibits or from the date the counsel for the accused received a copy of the the prosecution's written formal offer. It is to be counted from the date the court has ruled on the admissibility of the prosecution's evidence. Take note that the court may immediately rule on the admissibility of the documentary exhibits if these were offered orally during the hearing. If you are for the prosecution, it is therefore best to offer your documentary exhibits orally so that the court can rule on it in the same hearing.

In Cabador vs. People (G.R. No. 186001, October 2, 2009), the Supreme Court stated:
"Here, after the prosecution filed its formal offer of exhibits on August 1, 2006, the same day Cabador filed his motion to dismiss, the trial court still needed to give him an opportunity to object to the admission of those exhibits.  It also needed to rule on the formal offer. And only after such a ruling could the prosecution be deemed to have rested its case."

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