Republic of the PhilippinesDEPARTMENT 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 the Rules has made it mandatory that the Affidavits Complainant.careful consideration and examination of competent evidence. as well as the Affidavits of Witnesses. On _______________. Ultimately. the undersigned recommends the filing of the information for Adultery against the respondents _______________ at the _________________________” . ______________________. Furthermore. 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. 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. The dispositive portion of the said Resolution reads as follows: “WHEREFORE. issued by this Honorable Office finding probable cause for the case of Adultery against herein Respondent. TIMELINESS OF THE MOTION 1. Respondent received a copy of the Resolution. since the conduct of a preliminary investigation do not require a confrontation between the parties and their witnesses. finding probable cause. __________________ falls on a Sunday. Section 56 thereof. 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. the filing of this Motion for Reconsideration. Pursuant to the Rules on Procedure in The Investigation. 6. Therefore. 4.2. 3. Respondent is given 10 days from the receipt of the Resolution. or until __________________ to file a Motion for Reconsideration. GROUNDS FOR THE FILING OF THE MOTION FOR RECONSIDERATION 5. thus Respondent has until the next working day. it is . Part III. _______________ to file the motion. I. However. Prosecution and Trial of Criminal Cases. specifically. It is worth noting that no other pieces of evidence were offered to prove nor support the charge of Adultery against herein Respondent. It is mandatory that the Affidavit Complaint Affidavits and of the Witnesses supporting must be subscribed and sworn to before the authorized officers. Otherwise. paragraph (a) of the 2000 Revised Rules of Criminal Procedure mandates the procedure as to the conduct of investigations. — 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. inadmissible in evidence. whether a preliminary investigation is required to be conducted or not.” . Specifically. To wit: Section 3. as well as other supporting documents to establish probable cause. 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. thus. 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. section 3. They shall be in such number of copies as there are respondents. 8. before a notary public.considered an unsworn statement. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath. in their absence or unavailability. plus two (2) copies for the official file. hence a mere scrap of paper. Rule 112. 7. or. Herein Respondent. and unsworn statements are considered hearsay and self-serving. Procedure. It is ONLY IN THE ABSENCE OR UNAVAILABILITY of the foregoing officials that such affidavits may be certified before a notary public. ESTEBAN and TEODORA ALYN ESTEBAN 1 is instructive in determining the ramifications of the failure to comply with the said certification requirement. March 20. PHILIP RONALD P. 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. 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. 2013 . 14. 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.9. No.R. To excuse the above-mentioned fact that the Judicial Affidavits of the Witnesses were only attested to before a notary public. 10. 13. the present rules for which do not require a 1 G. the case of MARIE CALLO-CLARIDAD vs. 191567. 11. Likewise. More importantly. 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. 12. 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. 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.confrontation between the parties and their witnesses. 2001 . 15. 2 A. Well-settled is the rule that persons. Further. 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. No. Preliminary investigation is ordinarily conducted through submission of affidavits and supporting documents. whether they arose by implication from acts and conduct or were made orally or reduced in writing. or the employee’s employer in this case. such as an employee. Rule 112 of the Revised Rules of Criminal Procedure is mandatory. Jr. through submission of affidavits and supporting documents. This is so because the rules on preliminary investigation do not require a confrontation between the parties. to wit: In Oporto. Thus. 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. April 16. all the foregoing Judicial Affidavits deserve no probative value and should be treated as mere scraps of paper. it was held that the requirement set forth under Section 3. through the exchange of pleadings. Monserate2. whose unsworn declarations in behalf of a party. are not admissible in favor of the latter.M. As a consequence of the non-compliance with the Rules. hence. MTJ-96-1109. vs. The vital objection to the admission to this kind of evidence is its hearsay character. Thus. the certifications were mandatory. the Affidavit Complaint were merely acknowledged before a consulate officer in the Philippine Embassy in Washington D. The execution of an Acknowledgement is not enough. The affidavits Rules must require be that the subscribed and sworn to BEFORE THE AUTHORIZED OFFICERS in the absence of the latter.. II. 18. 19.C. Accordingly. to sign at the end of a document (Black's Law Dictionary. The Supreme Court in the case of MAXIMINO GAMIDO Y BUENAVENTURA. any notary public.16. United States of America and WAS NEVER SUBSCRIBED AND SWORN TO before the said consulate officer. Hence. NEW BILIBID PRISONS (NBP) OFFICIALS defined the phrase “subscribed and sworn to”. (Id. to declare on oath the truth of a pleading. In this instant case. 1298). 1279).. 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. To swear means to put on oath. Specifically. as one's name. etc. To state: To subscribe literally means to write underneath. 17. in a Jurat. VS.. 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. 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 . Fifth ed. the Honorable Office of the City Prosecutor erred in considering and giving weight to the Judicial Affidavits of the Complainant. 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. (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. Further. and. the Embassy assumes no responsibility”. that he has the authority to sign in that capacity. . 02-8-13-SC or the 2004 RULES ON NOTARIAL PRACTICE defines an ACKNOWLEDGMENT as: “Section 1. 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.M. if he acts in a particular representative capacity. 21. the said Acknowledgement states that “ For the contents of the annexed document. 20. No.“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.14th day of October by the Complainant. .” 22. As defined above. and that he declares that he has executed the document as his free and voluntary act and deed. Section 1 of Rule II of A. declares that he has executed the instrument or document as his free and voluntary act and deed. 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. Furthermore. Acknowledgment. The Manual for Prosecutors Part III. The same holds true with regard to the Affidavit of Witnesses accompanying the Affidavit Complaint. III. 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. among others. 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. an Acknowledgment. Section 14. nowhere in an Acknowledgment can one see nor deduce compliance with the requirements of Rule 112. 24. 14. Section 3 of the Revised Rules of Criminal Procedure. shall constitute sufficient basis for the outright dismissal of a complaint: a) that the offense charged in the complaint was . Dismissal of complaint. 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. which is the declaration under oath as to the truthfulness of the statements embodied in the Affidavit Complaint before a competent officer. of the Manual for Prosecutors. Thus. Section 14. Clear enough.The following. as well as the subscription before a notary public cannot be interpreted to comply with the requirement of the aforementioned Rules. While it be proper under the Judicial Affidavit Rule to have the affiant subscribe the same before any notary public.23. 25. . Pursuant to part III. To wit: SEC. committed outside the territorial jurisdiction of the Office of the Investigating Officer. the Honorable Prosecutor stated in its Resolution that: “Now. Section 3. c) that the complainant is not authorized under the provisions of pertinent laws to file the complaint. at the time of the filing of the complaint. 29. In addition. but instead by the Rule 112. 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 . 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. not by the Judicial Affidavit Rule. it is well settled that the Prosecutor is mandated. the offense charged therein had already prescribed. 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. 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. However.” 28. but importantly with its conformity with the requirements of the Rules of Criminal Procedure. 27. 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. 30. b) that. Besides. 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. Nos. 220. 31 July 1984. No. G. Puno.R. The alleged adulterous relationship was based on his allegation that the complainant allegedly saw the “love messages” between the respondents. Mendoza. unauthenticated judicial affidavits of his witnesses which was just photocopied from the cases filed by ________________. Therefore.government official authorized to administer oath. Vda. 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.R. however. 3 Sales v. 25 May 1979. To remind the Honorable Prosecutor. in conformity with the Rules of Criminal Procedure as well as the Manual for Prosecutors. that when a man is hailed to court on a criminal charge. 33. L-61554-55. With all due respect to the Honorable Prosecutor. G. Anything less would be a dereliction of duty3. It is not only the technical issues that herein respondent focused on. 90 SCRA 214. L-37876. 305 citing Bernardo v. 34. 131 SCRA 144. 16 November 2001. And substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion . The requirement of personal knowledge should have been strictly applied considering that the allegations in affidavit complaint were not supported with any evidence. The Honorable Prosecutor is likewise reminded that although the law has accorded them broad prosecutorial powers. Sandiganbayan. . it brings in its wake problems not only for the accused but for his family as well. The rules laid down under Rule 112. It should be realized. 143802. section 3 of the 1997 Rules of Court were not merely guide for the prosecutors to follow or not but are mandatory in nature. G. 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. 31. Aside from this bare allegations of the Complainant. No. the reason for the requirement that affidavits must be based on personal knowledge is to guard against hearsay evidence.R. 149. 32. 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. the narration in the affidavit complaint of alleged adulterous relationship of the respondents was based on the unsubscribed. 369 SCRA 293. De Jacob v. 36. INC. 38. it is likewise worthy to state that Prosecutors are duty-bound to secure the innocent against hasty. what then will be the basis in finding a probable cause for the crime of adultery? PRAYER IN VIEW OF THE FOREGOING. COURT OF APPEALS enunciated that while probable cause should be determined in a summary manner. fraudulent or groundless charges. In this case. expense and anxiety of a public trial .35. it is respectfully prayed of this Honorable Office that the Resolution. given that the facts from which the Honorable Prosecutor has derived its findings from were not even duly established by competent evidence. 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. the Supreme Court in the case of PREFERRED HOME SPECIALTIES. and to protect the State from the burden of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false. 37. thus. malicious and oppressive prosecution and to protect him from an open and public accusation of a crime and from the trouble. dated __________________. are inadmissible in evidence. 39. Furthermore. Under the same vein. Consequently. for probable cause to exist. 40. it is thus imperative that the elements of Adultery must be established by COMPETENT EVIDENCE required by the Rules in Preliminary Investigation. the complaint was not even based on personal knowledge worse. it was unsubscribed and unsworn. 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. recommending for the filing of . 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. VS. 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. Copy furnished: .an information for Adultery against herein Respondents be REVERSED and SET ASIDE. are likewise prayed for. Thank you. Davao City. Philippines. Other reliefs. RESPECTFULLY SUBMITTED. just and equitable in the premises. __________. and that a Resolution be issued DISMISSING the Complaint. VERIFICATION . Page No. ____. Series of 20___. x-------------------------------------------x AFFIDAVIT OF SERVICE I. ______________. Philippines. Book No. I have hereunto set my hand _________________________________ ___________________ Affiant SUBSCRIBED AND SWORN to before me this ______________________ at Davao City. Counsel for the Respondent. ____. ____. . after having been duly sworn to in accordance with law. Affiant exhibiting to me _______________________________.Republic of the Philippines) Davao City )S. No. depose and state: 1) I am a staff of ______________________. ___________________________________. 2) ______________________. in the above-entitled case.S. and with office address at _______________________________________________________. Philippines. I served a Motion for Reconsideration by registered mail pursuant to Section 7. Doc. Rule 13 of the Rules of Court to: IN WITNESS WHEREOF. of legal age.