Republic of the Philippines DEPARTMENT OF JUSTICE Office of the City Prosecutor __________________________
, Complainant,
FOR: ADULTERY
-versusRespondents.
VERIFIED MOTION FOR RECONSIDERATION
RESPONDENT, through the undersigned counsel, move this Honorable Office for a reconsideration of its Resolution dated February 16, 2015, a copy of which was received on February 26, 2015 upon the following considerations and further avers that: PREFATORY STATEMENT The determination of the existence of probable cause lies within the discretion of the prosecuting officers after conducting a preliminary investigation in accordance with the guidelines set forth in the 2000 Revised Rules of Criminal Procedure. Prosecutors however, are not given an unregulated authority to determine the existence of probable cause. They must abide by the cardinal rules of justice and fairplay. Specifically, in order that probable cause to file a criminal case may be arrived at, the elements of the crime charged should be determined to be present through the
careful consideration and examination of competent evidence. Furthermore,
since
the
conduct
of
a
preliminary
investigation do not require a confrontation between the parties and their witnesses, the Rules has made it mandatory that the Affidavits Complainant, as well as the Affidavits of Witnesses, must be subscribed and sworn to before any prosecutor or government official authorized to administer oath. The Ratiocination for the requirement is to exclude selfserving and unreliable evidence for purposes of the preliminary investigation and to ensure that the affidavits supporting the factual allegations in the Complaint have been sworn before a competent officer and that the affiant has signed the same in the former’s presence declaring on oath the truth of the statement made considering that this becomes part of the bases in finding probable guilt against the respondent. Ultimately, those Affidavits and statements that do not conform to the requirement of the Rules are accorded as self-serving and hearsay and thus are not admissible as evidence. TIMELINESS OF THE MOTION 1.
On _______________, Respondent received a copy of the Resolution,
______________________, issued by this Honorable Office finding probable cause for the case of Adultery against herein Respondent. The dispositive portion of the said Resolution reads as follows:
“WHEREFORE,
finding
probable
cause,
the
undersigned recommends the filing of the information for Adultery against the respondents _______________ at the _________________________”
2.
Pursuant to the Rules on Procedure in The Investigation, Prosecution
and Trial of Criminal Cases, specifically, Part III, Section 56 thereof, Respondent is given 10 days from the receipt of the Resolution, or until __________________ to file a Motion for Reconsideration;
3.
However, __________________ falls on a Sunday, thus Respondent has
until the next working day, _______________ to file the motion;
4.
Therefore, the filing of this Motion for Reconsideration;
GROUNDS FOR THE FILING OF THE MOTION FOR RECONSIDERATION
5.
The Recommendation for filing the Information made by the Honorable
Office of the City Prosecutor is SOLELY based on the Affidavit Complaint and the Judicial Affidavits of the witnesses that were submitted to the aforesaid Honorable Office;
6.
It is worth noting that no other pieces of evidence were offered to prove
nor support the charge of Adultery against herein Respondent;
I.
It is mandatory that the Affidavit
Complaint Affidavits
and of
the
Witnesses
supporting must
be
subscribed and sworn to before the authorized officers. Otherwise, it is
considered an unsworn statement; and unsworn statements are considered hearsay
and
self-serving,
thus,
inadmissible in evidence.
7.
Herein Respondent, maintains that the Affidavit Complaint as well as
the Judicial Affidavits of the Witnesses should not have been entertained and considered as evidence by the Honorable Prosecutor for the reason that it was not subscribed and sworn to before an authorized officer or even before a public prosecutor as mandated by the Revised Rules of Criminal Procedure, hence a mere scrap of paper;
8.
Specifically, Rule 112, section 3, paragraph (a) of the 2000 Revised
Rules of Criminal Procedure mandates the procedure as to the conduct of investigations, whether a preliminary investigation is required to be conducted or not. To wit:
Section 3.
Procedure. — The preliminary investigation shall be
conducted in the following manner: (a)
The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor
or
government
official
authorized
to
administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily
executed
and
understood
(underscoring and emphasis ours)
their
affidavits.”
9.
The above-mentioned provision unambiguously mandates that the
Affidavits must be subscribed and sworn to before a prosecutor or government official authorized to administer oath;
10.
It is ONLY IN THE ABSENCE OR UNAVAILABILITY of the
foregoing officials that such affidavits may be certified before a notary public;
11.
A perusal of the record of this case evidently shows that the
Complainant has not even alleged the unavailability of the prosecutor or any other government official who is authorized to administer oath to excuse the fact that only an Acknowledgment was made in his Affidavit Complaint;
12.
Likewise, the Judicial Affidavits of the witnesses that were attached to
the Affidavit Complaint were likewise not “subscribed and sworn to” before any prosecutor or government official authorized to administer oath;
13.
To excuse the above-mentioned fact that the Judicial Affidavits of the
Witnesses were only attested to before a notary public, the Complainant once again offered no proof or allegation regarding the unavailability of the prosecutor or any other government official who is authorized to administer oath to justify the noncompliance with the mandate of the Rules;
14.
More importantly, the case of MARIE CALLO-CLARIDAD vs. PHILIP
RONALD P. ESTEBAN and TEODORA ALYN ESTEBAN 1 is instructive in determining the ramifications of the failure to comply with the said certification requirement. To state: xxx
The CA explained that the requirement for the certifications under the aforecited rule was designed to avoid self-serving and unreliable evidence from being considered for purposes of the preliminary investigation, the present rules for which do not require a 1
G.R. No. 191567, March 20, 2013
confrontation between the parties and their witnesses; hence, the certifications were mandatory, to wit: In Oporto, Jr. vs. Monserate2, it was held that the requirement set forth under Section 3, Rule 112 of the
Revised
Rules
of
Criminal
Procedure
is
mandatory. This is so because the rules on preliminary investigation do not require a confrontation between the parties. Preliminary investigation is ordinarily conducted through submission of affidavits and supporting documents, through submission of affidavits and supporting documents, through the exchange of pleadings. Thus, it can be inferred that the rationale for requiring the affidavits of witnesses to be sworn to before a competent officer so as to ensure that the affidavits supporting the factual allegations in the Complaint have been sworn before a competent officer and that the affiant has signed the same in the former’s presence declaring on oath the truth of the statement made considering that this becomes part of the bases in finding probable guilt against the respondent. Well-settled is the rule that persons, such as an employee, whose unsworn declarations in behalf of a party, or the employee’s employer in this case, are not admissible in favor of the latter. Further, it has been held that unsworn statements or declarations are self-serving and self-serving declarations are not admissible in evidence as proof of the facts asserted, whether they arose by implication from acts and conduct or were made orally or reduced in writing. The vital objection to the admission to this kind of evidence is its hearsay character.
15.
As a consequence of the non-compliance with the Rules, the Supreme
Court has clearly held that such UNSWORN STATEMENTS in both the Judicial Affidavits accompanying the Affidavit Complaint including the Judicial Affidavit of the Complainant himself are all self-serving and are not admissible in evidence as proof of the facts asserted. Thus, all the foregoing Judicial Affidavits deserve no probative value and should be treated as mere scraps of paper;
2
A.M. No. MTJ-96-1109, April 16, 2001
16.
Hence, the Honorable Office of the City Prosecutor erred in considering
and giving weight to the Judicial Affidavits of the Complainant, as well as the Judicial Affidavits of his witnesses since all of their Judicial Affidavits were not subscribed and sworn to before any prosecutor or government official authorized to administer oath;
II.
The
affidavits
Rules must
require be
that
the
subscribed
and
sworn to BEFORE THE AUTHORIZED OFFICERS in the absence of the latter, any notary public. The execution of an Acknowledgement is not enough.
17.
The Supreme Court in the case of MAXIMINO GAMIDO Y
BUENAVENTURA, VS. NEW BILIBID PRISONS (NBP) OFFICIALS defined the phrase “subscribed and sworn to”. To state:
To subscribe literally means to write underneath, as one's name; to sign at the end of a document (Black's Law Dictionary, Fifth ed., 1279). To swear means to put on oath; to declare on oath the truth of a pleading, etc. (Id., 1298). Accordingly, in a Jurat, the affiant must sign the document in the presence of and take his oath before a notary public or any other person authorized to administer oaths. 18.
In this instant case, the Affidavit Complaint were merely acknowledged
before a consulate officer in the Philippine Embassy in Washington D.C., United States of America and WAS NEVER SUBSCRIBED AND SWORN TO before the said consulate officer;
19.
Specifically, the aforementioned “ACKNOWLEDGMENT” in the
Affidavit Complaint merely states that the Complainant is the same person who executed the annexed document which is the Affidavit-Complaint executed on the
14th day of October by the Complainant. Further, the said Acknowledgement states that “ For the contents of the annexed document, the Embassy assumes no responsibility”;
20.
It is worthy to note that the Complainant never made an explanation
why he resorted to an Acknowledgment before the consular official considering the fact that consular officials have the power and authority to administer an oath and thus is one of the government officials contemplated in the above stated provision of the Rules;
21.
Furthermore, Section 1 of Rule II of A.M. No. 02-8-13-SC or the 2004
RULES ON NOTARIAL PRACTICE defines an ACKNOWLEDGMENT as:
“Section 1. Acknowledgment. - “Acknowledgment” refers to an act in which an individual on a single occasion: (a) appears in person before the notary public and presents an integrally complete instrument or document; (b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.”
22.
As defined above, an Acknowledgment only imparts that the signature
on the document was voluntarily affixed by the person executing the document for the purposes stated in the document, and that he declares that he has executed the document as his free and voluntary act and deed;
23.
Clear enough, nowhere in an Acknowledgment can one see nor deduce
compliance with the requirements of Rule 112, Section 3 of the Revised Rules of Criminal Procedure, which is the declaration under oath as to the truthfulness of the statements embodied in the Affidavit Complaint before a competent officer.
24.
The same holds true with regard to the Affidavit of Witnesses
accompanying the Affidavit Complaint. While it be proper under the Judicial Affidavit Rule to have the affiant subscribe the same before any notary public, this act is INSUFFICIENT in a case before the Office of the Prosecutor since it does not conform to the mandatory requirements of the Rules with regard to preliminary investigation;
25.
Thus, an Acknowledgment, as well as the subscription before a notary
public cannot be interpreted to comply with the requirement of the aforementioned Rules;
III.
Pursuant to part III, Section
14, of the Manual for Prosecutors,
THE OUTRIGHT DISMISSAL OF THE COMPLAINT IS WARRANTED if the Complaint and its supporting Affidavits
subscribed prescribed
have
and
under
not
Criminal Procedure
been
sworn the
to
Rules
duly as
on
26. The Manual for Prosecutors Part III, Section 14, paragraph (e) clearly provide that if the Complaint and the supporting Affidavits are not properly subscribed and sworn to as prescribed under the Rules on Criminal Procedure, the same shall cause its outright dismissal. To wit: SEC. 14. Dismissal of complaint. - The following, among others, shall constitute sufficient basis for the outright dismissal of a complaint: a)
that the offense charged in the complaint was
committed outside the territorial jurisdiction of the Office of the Investigating Officer; b)
that, at the time of the filing of the complaint, the offense charged therein had already prescribed;
c)
that the complainant is not authorized under the provisions of pertinent laws to file the complaint;
d)
that the acts and/or omissions alleged in the complaint and/or the supporting affidavits do not sufficiently show that a criminal offense or violation of a penal law has been committed; or
e) that the complaint and the supporting affidavits are unsigned and/or have not been duly subscribed and sworn to as prescribed under the Rules on Criminal Procedure. 27.
In addition, the Honorable Prosecutor stated in its Resolution that: “Now, whether or not the said documents were properly subscribed and notarized as mandated by the judicial affidavit rule is a matter beyond the jurisdiction of the undersigned to determine as we are only interested in the criminal culpability of the respondents.”
28.
However, it is well settled that the Prosecutor is mandated, not by the
Judicial Affidavit Rule, but instead by the Rule 112, Section 3, Paragraph (a) of the Revised Rules of Criminal Procedure to accept and give weight only to those affidavits that are properly subscribed and sworn to before any prosecutor or government official authorized to administer oath; 29.
Besides, the issue in this case is not only with regard to the compliance
of the Complaint and the supporting affidavits with the Judicial Affidavit Rule alone, but importantly with its conformity with the requirements of the Rules of Criminal Procedure;
30.
The
Honorable
Prosecutor
is
thus
gently
reminded
of
his
responsibilities to give weight and consideration only to Complaint and supporting Affidavits that are properly subscribed and sworn to before any prosecutor or
government official authorized to administer oath, in conformity with the Rules of Criminal Procedure as well as the Manual for Prosecutors;
31.
Be it noted that Prosecutors are endowed with ample powers in order
that they may properly fulfill their assigned role in the administration of justice. It should be realized, however, that when a man is hailed to court on a criminal charge, it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before filing the information in court. Anything less would be a dereliction of duty3.
32.
With all due respect to the Honorable Prosecutor, It is not only the
technical issues that herein respondent focused on. The rules laid down under Rule 112, section 3 of the 1997 Rules of Court were not merely guide for the prosecutors to follow or not but are mandatory in nature;
33.
To remind the Honorable Prosecutor, the reason for the requirement
that affidavits must be based on personal knowledge is to guard against hearsay evidence. The requirement of personal knowledge should have been strictly applied considering that the allegations in affidavit complaint were not supported with any evidence. The alleged adulterous relationship was based on his allegation that the complainant allegedly saw the “love messages” between the respondents. Aside from this bare allegations of the Complainant, the narration in the affidavit complaint of alleged adulterous relationship of the respondents was based on the unsubscribed, unauthenticated judicial affidavits of his witnesses which was just photocopied from the cases filed by ________________;
34.
The Honorable Prosecutor is likewise reminded that although the law
has accorded them broad prosecutorial powers, such an authority is not unfettered because public prosecutors are constrained to adhere to the time-honored principle that a finding of probable cause requires substantial evidence. And substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion ;
3
Sales v. Sandiganbayan, G.R. No. 143802, 16 November 2001, 369 SCRA 293, 305 citing Bernardo v. Mendoza, G.R. No. L-37876, 25 May 1979, 90 SCRA 214, 220; Vda. De Jacob v. Puno, G.R. Nos. L-61554-55, 31 July 1984, 131 SCRA 144, 149.
35.
In this case, for probable cause to exist, it is thus imperative that the
elements of Adultery must be established by COMPETENT EVIDENCE required by the Rules in Preliminary Investigation;
36.
Furthermore, the Supreme Court in the case of PREFERRED HOME
SPECIALTIES, INC. VS. COURT OF APPEALS enunciated that while probable cause should be determined in a summary manner, there is a need to examine the evidence with care to prevent material damage to a potential accused’s constitutional right to liberty and the guarantees of freedom and fair play, and to protect the State from the burden of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false, fraudulent or groundless charges; 37.
Under the same vein, it is likewise worthy to state that Prosecutors are
duty-bound to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime and from the trouble, expense and anxiety of a public trial ;
38.
Hence the Judicial Affidavits of the Complainant and his Witnesses
should have necessarily been disregarded by the Office of the City Prosecutor for being hearsay and self-serving; thus, are inadmissible in evidence;
39.
How can the Honorable Prosecutor engender a well-founded belief that
the crimes have been committed and that the Respondent is probably guilty when there was NO evidence to support the complainant’s claim? In fact, the complaint was not even based on personal knowledge worse, it was unsubscribed and unsworn;
40.
Consequently, given that the facts from which the Honorable
Prosecutor has derived its findings from were not even duly established by competent evidence, what then will be the basis in finding a probable cause for the crime of adultery? PRAYER IN VIEW OF THE FOREGOING, it is respectfully prayed of this Honorable Office that the Resolution, dated __________________, recommending for the filing of
an information for Adultery against herein Respondents be REVERSED and SET ASIDE, and that a Resolution be issued DISMISSING the Complaint. Other reliefs, just and equitable in the premises, are likewise prayed for. RESPECTFULLY SUBMITTED. Davao City, Philippines. __________.
NOTICE OF SUBMISSION
Administrative Officer City Prosecution Office __________________________
Please take notice that we are submitting the foregoing Motion for the kind consideration of this Honorable Office immediately upon receipt hereof sans appearances and without further arguments. Thank you.
Copy furnished:
VERIFICATION
Republic of the Philippines) Davao City
)S.S.
x-------------------------------------------x AFFIDAVIT OF SERVICE I,
______________,
of
legal
age,
and
with
office
address
at
_______________________________________________________, Philippines, after having been duly sworn to in accordance with law, depose and state: 1) I am a staff of ______________________, Counsel for the Respondent, ___________________________________, in the above-entitled case; 2) ______________________, I served a Motion for Reconsideration by registered mail pursuant to Section 7, Rule 13 of the Rules of Court to: IN
WITNESS
WHEREOF,
I
have
hereunto
set
my
hand
_________________________________
___________________ Affiant SUBSCRIBED AND SWORN to before me this ______________________ at Davao City, Philippines; Affiant exhibiting to me _______________________________.
Doc. No. ____; Page No. ____; Book No. ____; Series of 20___.
