KUPALOURD Rule 18 Pre-trial REM 1 BRONDIAL
Rule 18 must be read together with Rule 118 Pre-trial in Criminal Cases. Dito sa pre-trial, as early as 1989, pre-trial in Civil Cases was already mandatory, but in Criminal Cases, it became mandatory only in 1998. 9 years after. Masyado malayo diba? Bakit hindi mandatory yung pre-trial before in Criminal Cases? Because pre-trial includes stipulations and admissions. E medyo alanganin sa Criminal, because you might be convicted by mere stipulations and admissions. Kung sa Pre-trial nag-stipulate, did the accused kill the victim? Yes. E di tapos na. haha. And why did you kill the victim? Because I hated him. O edi tapos na, kaya be very careful. Inayos mabuti yung procedure before it became mandatory. But under the present dispensation, whether it is criminal or civil, PRE-TRIAL IS MANDATORY. So that, what will happen if there is no pretrial? It may amount to a miscarriage of justice. It may amount to non-compliance with due process. Non-observation of the due process clause. In fact, if you try to look at Rule 121, that is New Trial/Reconsideration in Criminal Cases. Among the grounds for New Trial – irregularities in the proceedings - SO failure
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to have a pre-trial is an irregularity in the proceeding. That may be a ground for New Trial.
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RULE 18 Pre-trial as Amended
So let’s go to 18 as amended, incidentally and unfortunately, the amendatory circular to pretrial has not been integrated in Rule 18. Ang tagal na non. And this is the circular on Philippine Mediation and Conciliation Process or Proceeding. Mandatory yan and that should have been integrated in Rule 18 as well as in Rule 118. Kasi dito whether it is Civil or Criminal, kailangan ang pre-trial, as amended. And the amendatory circular is the Philippine Mediation and Conciliation Proceedings. Let me discuss this Rule 18 and Rule 118 as amended by the Philippine Mediation and Conciliation What don’t you find under Rule 18 that you find in Rule 118? Plea-bargaining. There is no plea-bargaining in civil cases, in criminal cases, plea-bargaining is mandatory or the court should at least ask whether they will plea bargain.
Ano yon? Under Sec. 1 of Rule 18, it says there that after the last pleading is filed, the plaintiff must file a motion ex parte to set the case for pre-trial.
[Old] Section 1. When conducted. — After the last pleading has been served and filed, if shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial Applicable pa ba yan? YES, applicable pa yan. In Criminal Cases walang provision na ganon, although you can also apply that. And that is
being applied also. Pero because of this amendatory rule… SO halimbawa, Mr. A the plaintiff, after the last pleading- ano ba ang last pleading? – supposedly Reply. But Reply is not always necessary. SO after he has received a copy of the Answer, he can now file a motion ex parte setting the case for pre-trial. Supposed the court sets the case for pre-trial, let’s just say Feb. 15 immediately after Valentine’s Day. Feb. 15, may pre-trial tayo. On the day of pre-trial, matutuloy ba yung pretrial as provided for under Rule 18 or Rule 118? NO. It will not because ang unang tatanungin ng judge as if hindi niya alam pero alam niya naman yan. “Have you undergone mediation or conciliation?” Nagtatanong na alam naman nila na wala. Sasabihin, “wala pa po.” Magtatanong pa “would you like a mediation to be conducted?” Hindi na dapat. Dapat i-order na ng court because this is mandatory, whether it is civil or criminal whether it is summary or regular procedure, mediation is mandatory. So ang dapat doon pagdating sa pre-trial, Feb 15, the judge will say “Go, to the Mediation Proceeding!” because every court throughout the Philippines meron na diyan na adjunct mediator and conciliator. The mediator and conciliators are supposedly non-lawyers. They should be better if they are psychologists, social workers, mga ganon, but the truth of the matter is that ang mga mediator ngayon sa Metro Manila ay usually retired lawyers. We even have retired fiscals,
KUPALOURD Rule 18 Pre-trial REM 1 BRONDIAL
So the court will send you to the mediator. And you have how many days? 30 days within which to arrive possibly at amicable settlement. Pagdating don, tatanungin ng mediator, “O, ano bang problemang ito?” “Andito, sum of money lang naman ito” “Magkano sinisingil mo?” “300K” Sabi ng mediator, “hindi mo ba pwedeng tanggapin?” “Sige po kung 300K yan e, pwede na ho ng 295K.” “Sobra ka naman, baka pwede naman… Magkano naman ikaw ang pwede mo bayaran?” Yung para bang central market, you’re bargaining. Parang collective bargaining negotiation. So sabi niya, “kaya ko lang po, 50K” Tinignan ka ng plaintiff sama ng mata “50K?!” interest lang yan e! But until finally, perhaps you can come up 150K. It is 50%. “O payag ka na ba 150K?” “Sige ho payag na ko” “o sige ha, I’ll give you agreement 150K” “Ay sandal po!” sasabihin ng defendant. “Pwede ho bang sampung hulugan?” haha! Nasira na naman. “Ano?! Akala koi to diretso na 150K, sampu pala. 15K a month?! Ano ba naman yan?” Edi pag-usapan niyo na naman. “Pwede bang 8 months?" “Wag!” sasabihin ng plaintiff, “2 months! O 75000 per month” “ay hindi,” so you are at again at 5 months. Kapag meron na, ibabalik yung compromise agreement, they’ll already be a judgment on compromise. Ok? Problem: In Criminal Cases, remember that
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Criminal Cases are not subject to compromise. You cannot compromise Crim Cases. So ano ang gagawin doon? May amicable settlement ang palusot ganito. Palusot sa batas. Ang palusot diyan ganito, “we are going to settle the Civil aspect of the case” Homicide, halimbawa. Ang sabi ng mediator, “alam niyo ho namatay ho yung anak ninyo, hindi nap o maibabalik yung buhay niyan” Masakit diba? “Kaya nga ho humihingi kami ng danyos kasi hindi na namin maibalik yung buhay ng anak ko. Kasi ho kung buhay yan, nag t trabaho na yon, kumikita na yon, nagbibigay na sa amin ng pera.” Pero sige, civil aspect, magkano naman ang danyos na hinihingi mo? Kasi hindi mo na maibalik ang buhay. Gusto ko ho ikulong yan. Matigas yan. At sasabihin nung conciliator, o sige, re-set natin ha. 10 days. Palamig muna kayo. Re-set. O, kaya nga the 30 days can be extended to another 30 days max. of 60 days.
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retired judges. Sila ang mga mediator. But you know I like this procedure because at the moment, 70-75% of mediation succeeds and it has a very good way to declog the dockets of courts kasi grabe na ang docket ng courts natin. So itong mediation, maganda talaga ito.
Kung nagkaigi, kelangan ko lang po half a million. Sabi naman ng defendant, medyo may pera. Sige ho payag na ho ako half a million para matapos nalang. So na-settle yung civil aspect of the case, ano ng gagawin ng criminal aspect of the case? Hindi ma-s-settle yon. But you have it dismissed. In the settlement proceeding, nagkakaroon ng execution of an affidavit of desistance. When you get to become lawyers, be very careful with your affidavit of desistance. The affidavit of desitance must be stated in such a way that you did not receive anything. Ilalagay mo lang don that considering that we filed this case because of misapreeciation of facts. Diba mga ganyan? Sa Civil, madali. Sa Criminal,
mahirap. Then, pagdating sa court, mayroon ng affidavit of desistance. That will be subscribed and sworn to before the prosecutor. Remember, Criminal – it is under the direct control and supervision of the public prosecutor, witness ka lang, private complainant ka. So it must be subscribed before the fiscal. Pagdating don, may affidavit of desistance, ganito na ang procedure niyan. The fiscal will present the affiant before the witness’ stand and say, “Mr. so and so, are you the complainant in this case? YES. Do you recall having executed an affidavit of desistance? YES. Is this the affidavit of desistance? YES. Do you affirm and confirm all the allegations in the affidavit of desistance. YES, ok? Your Honor, exhibit A for the prosecution. Your Honor, with the affidavit of desistance of the private complainant, the prosecution will have no principal witness in this case. And we’ll be unable to establish the guilt of the accused beyond reasonable doubt, hence, prosecution moves for the dismissal of the case. Any objections? Sino mag-o-object? Haha! Ok, this case is dismissed” Yan ang paikot don. And that is brought about by this. Kaya tumagal na mangyari yung pretrial as mandatory in criminal cases. Kasi paiikutan mo yung batas. You cannot compromise. Kasi ang complainant dito is the Rep of the Phils. The 98M people of the Philippines against Juan Carlos y Salarzia. But in Civil, madali. Compromise Agreement Judgment. Now, supposed there is no settlement during the conciliation proceedings. Yung records
KUPALOURD Rule 18 Pre-trial REM 1 BRONDIAL
Under the Mediation Rule, ang sasabihin ng Clerk of Court. Dati galit yung mga Clerk of Court dito sasabihin niya, “Ano ba ito? Additional work na naman ito.” Nag-complain sila. Sabi ng SC, yan, yan ang sinabi ko, wala, tuloy na yan. So ngayon nasanay yung mga Clerk of Court to undertake the preliminary conference. Pagdating don, under the Rule, it says, the Clerk of Court must try to convince them to arrive at settlement. Kung wala na rin talaga, so preliminary conference proper takes place. Papaano yon? Nakita niyo don sa Sec. 1 of Rule 18 na ginagawa ron stipulations and admissions, marking of evidence, diba? And then, statement as to the nature of the witnesses, the names of the witnesses. Lahat yan hindi na yan sa pre-trial proper. Tandaan niyo, hindi na yan sa pre-trial, that is already in the Preliminary Conference before the Branch Clerk of Court so as far as the plaintiff is concerned, the Branch Clerk of Court will say, “Ok, sige, mag stipulate ka na. Will admit the identity of the defendant? Ok. Will you admit jurisdiction? Admitted.” Lahat yan.
Ok, ilalagay na yon. What is the nature of their respective testimony? The first witness, evidence in chief. The second and third witnesses, corroborative witnesses. Nakalagay na yon doon lahat. Ganon din dito sa defendant.
Sa Civil, under Rule 18, so the Clerk of Court said, “ok, stipulation/admission” alright. And then, what are your pieces of documentary evidence? “I have here promissory note” “Ok, let that be marked as Exhibit A” Pangalawa, demand letter. “Let that be marked as Exhibit B” There is a check. “Let that be marked as exhibit C” Nandon na lahat. Marking of evidence. Under, now, the preliminary conference. OK? Marking of Evidence!
Ano ang last part? How long will it take you to complete your presentation of evidence [] It will take me 4 settings. Now is Feb 15 or March 15. We give you 1 month each so Feb then you have March, April, May and June. And after June, you have 1 month to prepare your formal offer of evidence. So by July, we have already defendant’s evidence.
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Then, sa Criminal, be very careful ha. Baka kung lawyer na kayo, be very careful with your admission. Pagdating sa Criminal, tatandaan niyo, if you are for the accused, dalawa lang ang dapat mo i-admit, identity as far as the information is concerned and jurisdiction.
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ibabalik doon saan? Sa Clerk of Court and you call this, Preliminary Conference. Don’t call that pre-trial. Why? The term preliminary conference applies now in both summary and regular procedure. There is now preliminary conference even in regular procedure. Dati, applicable lang yan sa Summary Procedure. Ngayon, preliminary conference because of this instance is now applicable in regular procedure but it is undertaken before the Branch Clerk of Court.
This is not the time for objection. Because the objection under the Rules of Evidence can only be done or undertaken at the time of offer. Nag m mark lang ito. Ngayon, halimbawa, ang pinapamarkahan ng plaintiff are Xerox copies. You make the proper manifestations. “Those documents that are being marked, Your Honor are only Xerox copies.” So sasabihin ng Branch Clerk of Court, “ok, Provisional Marking, subject to comparison in the course of the trial.” Pagkatapos, doon naman sa defendant, “ikaw defendant, how many pieces of documentary evidence?” Makikita Exhibit 1, Exhibit 2, Exhibit 3. Lahat na yon. Next, how many witnesses are you going to present? I am going to present 3 witnesses. Who are these 3 witnesses? I have Juan Carlos, Pedro Santos and Maximino dela Cruz.
How many days? How many settings? I need only 3 settings. So we start you by July or August. August, September, October. Ano ba ang ginagamit dito now, sa gantong procedure? Ginagamit yanin compliance or pursuant to the Speedy Trial Act. The Speedy Trial Act. You know, that this is discussed under Rule 119, because it is integrated there. But you know ang Speedy Trial Act, instead of really expediting the proceedings, only delays the proceedings. Nahahalata na yan ngayon ng lahat ng practitioner na pagka ginamit itong Speedy Trial Act, hindi nagiging Speedy, mas lalong lard- it lags behind. Kasi ano ang nangyayari? Every case you have already specific setting. Pagating sa trial, o the first day of trial, Apr 5, first day of trial. Pagdating doon, prosecution evidence ito or plaintiff’s evidence. Pagdating sa trial, ano nangyari? Wala si judge. Bakit? Pinatawag ng Malacanang kahit hindi. Haha! Wala si judge, so reset doon sa next so by the time that it is already the
KUPALOURD Rule 18 Pre-trial REM 1 BRONDIAL
So this is what happens, so pagdating ng presentation ng evidence for the defendant, nandoon ka palang sa plaintiff. Pag natapos naman yan, sasabihin ng court, “O, when will be our next hearing?” “Our next hearing, Your Honor, will be November 15” Then pag November 15, nag-present din. “O, what is our next setting?” “Wala na po.” “O, when can you set it?” “Can you set it by December?” “Hindi pwede. Our hearing on December will only be up to December 12. December 15. Kasi Christmas na” “So kelan? January?” “Hindi po, puno na po ang calendar.” “So kelan?” “Ang available po June of the following year” Haha! That is the reality now. Kaya don ka na magstart sa June kasi yung iba, na Speedy Act Trial cases din, meron na ring setting and kahit tingnan mo ang record, talagang puno na ang calendar. So this is Speedy Trial Act. Mabuti pang hindi i-set, para yung mga postponed, may mga judges, halimbawa, nag mag-s-set ng 25 cases for one day. Alam niya naman na matutuloy lang don, tatlo. Sinet pa 25 cases, so tawag ngayon. Not Ready. Non-Appearance. Not Ready. Non-Appearance. So re-set that. Kelan? Today is August, re-set that by November. So ang tagal na. This is what happens. Notwithstanding our requirements
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that it must be expedited thru this mediation conciliation proceedings, hindi pa rin natutuloy.
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last day, for the presentation of evidence, wala pa rin. Hindi matutuloy ngayon. Bakit hindi matutuloy? Yung mga stenographers may national conference sa Baguio. So walang stenographer. SO 1001 reasons. Pagdating naman ng isa, may sakit po yung witness naming or yung lawyer namin po, nag LBM. Diba? Usual. Yun palagi ang lawyer. Ewan ko bakit palaging nag-l-LBM pag lawyer. Sickness is most abused ground for postponement. Kasi LBM, hindi kailangan ng medical certificate.
This is preliminary conference. When is now the pre-trial proper? The pre-trial proper, i-p-prepare na yon ng Clerk of Court. And the records will be brought on the date set for pre-trial proper. Pagdating doon sa pre-trial proper, anong gagawin na ng Judge? Under the mediation rule, the judge must still convince them to enter into settlement. Pag hindi pa rin. He now issues the pre-trial order. Tandaan niyo ito. Mandatory yan. Pre-trial order. Without the pre-trial order, there will be an irregularity. It can be a ground for re-opening cases. Kailangan na kailangan ang Pre-Trial Order, bakit? This is the guide for the hearing. This pre-trial order. So ang ibang mga judges for those of you who are familiar with court proceedings, yung pumupunta kayo, nagkakausap kayo, yung magagaling na judge, pagbigay ng record ng Clerk of Court, right there and then will issue the pre-trial order. Yung mga bagong judge or mga tamad siguro or whatever. Sabihin niyan, the pre-trial is hereby terminated. Yun lang sasabihin non. So the pre-trial order… kasi nandon na lahat e, dapat i-recite na yon. Yung evidence… Then, when you receive a copy of the pre-trial order, every party or every lawyer is given 15 days within which to question or to assail or make modifications in the pre-trial order.
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1:12:23 Raemond, start here until end ------------------------------------------------
-------------------------START OF BRONDI NOTES (Ging) please check if kaya iincorporate When pre-trial is set, what happens? Presentation of documents and names of witnesses; marking and identification of evidence
An application for being a state witness, is that part of plea-bargaining? No. Because it is upon the discretion of the prosecution to recommend, although the final say is with the court. That is not part of plea- bargaining because plea-bargaining is asking the other party to accept your plea to a lower charge, e.g., murder to homicide, and that is done during pre-trial. Take note that when you plea bargain for the reduction or removal of one of the accused from the charge sheet, it must always be by leave of court. Under Rule 18, under mandatory requirement there is appearance of the parties and counsels. What are the
KUPALOURD Rule 18 Pre-trial REM 1 BRONDIAL
Present rule): Rule on national mediation and conciliation proceedings before the Philippine Mediation and Conciliation Office (amended Rule 18 and Rule 118); the term preliminary conference is not limited now to summary procedure only. Even in the pre-trial, as amended, there is preliminary conference. That preliminary conference is done before
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the branch clerk of court. Identification of evidence, marking of evidence, stipulations and admissions – they are all done before the branch clerk of court. So when the plaintiff sets pre-trial on a particular day, you go to court and 100% pre-trial will not push through because you will be referred to Philippine Mediation and Conciliation Office, which is mandatory and cannot be waived. Within 30 days, you must find ways and means to settle. And this 30-day period is extendible to another 30 days, maximum of 60 days for mediation and conciliation.
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sanctions if any of the party does not appear? It depends. If it is the plaintiff, the action will be dismissed without prejudice, unless otherwise ordered by the court or in other words, non-suited. If it is the defendant, it shall be cause to allow plaintiff to present his evidence ex parte. Note that there is no more declaration here, “as in default”. But if the counsel is not present, but the party, plaintiff or defendant, then the rule will not apply because it is the counsel who is not present. Unfortunately there is no sanction for lawyers under this rule. In criminal procedure, however, sanction is up to P20, 000 for private lawyers, and up to P5, 000 for government lawyers.
What happens if there is settlement there? Mediator will simply draft compromise agreement, and when parties are amenable, they will sign it, and they give it to the court which will render judgment on compromise that is immediately executory. If there is no settlement before the mediation officer, then it is brought back to the court for preliminary conference before the branch clerk of court. And after the branch clerk of court has undertaken the preliminary conference, you go now to pre-trial proper before the judge. The judge will now have to issue a pre-trial order. The pre-trial order is
mandatory. Without a pre-trial and pre-trial order is a ground for disciplinary action against the judge, and pre-trial must be conducted. In criminal procedure under Rule 121, lack of pre-trial is a ground for new trial. Summary: 1. Mediation and conciliation with the PMCO; a.
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30 days, extendible for another 30 days If settled a. Mediation officer drafts compromise agreement; b. Parties sign; c. Submit to court; d. Court issues judgment on compromise (immediately executory). If not settled a. Case brought back to court for preliminary conference before branch clerk; b. After PC before branch clerk, pre-trial proper before the judge; c. Judge issues pre-trial order.
