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Demurrer to Evidence in Criminal Cases


Sec. 23. 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 evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. 


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.


If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.


The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (Rule 119, Rules of Court)  


What are the options of the accused after the prosecution rests its case? 

The accused may:
  1. File a demurrer to evidence with leave or without leave of court
  2. Adduce his evidence
  3. Waive the presentation of his evidence

What is a demurrer to evidence?

It is a  motion to dismiss the case filed by the defense after the prosecution rests on the ground of insufficiency of the evidence of the prosecution.


How may a criminal case be dismissed on the basis of insufficiency of evidence of the prosecution?
  1. The court may dismiss the case on its own initiative after giving the prosecution the right to be heard
  2. Upon demurrer  to evidence filed by the accused with or without leave of court

How do you file a demurrer  to evidence?

Within 5 days (non-extendible) after the prosecution rests, the accused should file a motion for leave of court to file a demurrer to evidence, stating in such motion his grounds for such.

The  prosecution  shall  have  5  days (non-extendible) within  which  to  oppose  the motion.

If  the  motion  is  granted,  the  accused  shall  file  the  demurrer  to evidence within 10 days (non-extendible) from notice of grant of leave of court.

The prosecution may oppose the demurrer to evidence within 10 days (non-extendible) from its receipt of the demurrer.


What is the effect of filing a demurrer  to evidence with leave of court?

The effect of its filing is that if the court grants the demurrer, the case will be dismissed. If  the  court denies  the  demurrer  to  evidence  filed  with  leave  of court, the accused may still adduce evidence on his behalf not only on the criminal aspect  but  also  on  the  civil aspect of the case.


Can you appeal the order denying your demurrer to evidence?

As  a  general  rule,  there  can  be  no  appeal on  the denial  of  the  demurrer  to evidence,  since  it is  an  interlocutory order which doesn’t pass judgment on the merits of the case. It can however be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority.


What is the effect of filing a demurrer  to evidence without leave of court?

If  the  court  denies  the  demurrer  to  evidence  which  was  filed without leave of court, the accused is deemed to have waived his right  to  present  evidence  and  submits  the  case  for  judgment  on basis of the evidence of the prosecution.


What is the rationale for this rule?

The rationale for the rule is that when the accused moves for dismissal on the ground of insufficiency of the prosecution evidence, he does so in the belief that said evidence is insufficient to convict and, therefore, any need for him to present any evidence is negated. It is said that an accused cannot be allowed to wager on the outcome of judicial proceedings by espousing inconsistent viewpoints whenever dictated by convenience. The purpose behind the rule is also to avoid the dilatory practice of filing motions for dismissal as a demurrer to the evidence of the prosecution and, after denial thereof, the defense would then claim the right to present its evidence. (People vs. Turingan)


Jurisprudence:

● After the prosecution has rested its case, the accused has the option either to (a) file a demurrer to evidence with or without leave of court under Section 23, Rule 119 of the Revised Rules of Criminal Procedure, or to (b) adduce his evidence unless he waives the same.

In criminal cases, the demurrer to evidence partakes of the nature of a motion to dismiss the case for failure of the prosecution to prove his guilt beyond reasonable doubt. In a case where the accused files a demurrer to evidence without leave of court, he thereby waives his right to present evidence and submits the case for decision on the basis of the evidence of the prosecution. On the other hand, if the accused is granted leave to file a demurrer to evidence, he has the right to adduce evidence not only on the criminal aspect but also on the civil aspect of the case if his demurrer is denied by the court.

If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist. If the trial court issues an order or renders judgment not only granting the demurrer to evidence of the accused and acquitting him but also on the civil liability of the accused to the private offended party, said judgment on the civil aspect of the case would be a nullity for the reason that the constitutional right of the accused to due process is thereby violated.

This is so because when the accused files a demurrer to evidence, the accused has not yet adduced evidence both on the criminal and civil aspects of the case. The only evidence on record is the evidence for the prosecution. What the trial court should do is to issue an order or partial judgment granting the demurrer to evidence and acquitting the accused; and set the case for continuation of trial for the petitioner to adduce evidence on the civil aspect of the case, and for the private complainant to adduce evidence by way of rebuttal after which the parties may adduce their sur-rebuttal evidence as provided for in Section 11, Rule 119 of the Revised Rules of Criminal Procedure

Thereafter, the court shall render judgment on the civil aspect of the case on the basis of the evidence of the prosecution and the accused.

In this case, the petitioner was charged with estafa under Article 315, paragraph 2(d) of the Revised Penal Code. The civil action arising from the delict was impliedly instituted since there was no waiver by the private offended party of the civil liability nor a reservation of the civil action. Neither did he file a civil action before the institution of the criminal action.

The petitioner was granted leave of court to file a demurrer to evidence. The court issued an order granting the demurrer on its finding that the liability of the petitioner was not criminal but only civil. However, the court rendered judgment on the civil aspect of the case and ordered the petitioner to pay for her purchases from the private complainant even before the petitioner could adduce evidence thereon. Patently, therefore, the petitioner was denied her right to due process. (Salazar vs. People, G.R. No. 151931. September 23, 2003)


● Demurrer to the evidence is “an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue.  The party demurring challenges the sufficiency of the whole evidence to sustain a verdict.  The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. x x x Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances.  To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused.”  Thus, when the accused files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt.

The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court, and its ruling on the matter shall not be disturbed in the absence of a grave abuse of such discretion.  As to effect, “the grant of a demurrer to evidence amounts to an acquittal and cannot be appealed because it would place the accused in double jeopardy. The order is reviewable only by certiorari if it was issued with grave abuse of discretion amounting to lack or excess of jurisdiction. When grave abuse of discretion is present, an order granting a demurrer becomes null and void.

As a general rule, an order granting the accused’s demurrer to evidence amounts to an acquittal. There are certain exceptions, however, as when the grant thereof would not violate the constitutional proscription on double jeopardy. For instance, this Court ruled that when there is a finding that there was grave abuse of discretion on the part of the trial court in dismissing a criminal case by granting the accused’s demurrer to evidence, its judgment is considered void. (People vs. Go, et al., G.R. No. 191015, August 06, 2014).


● The power of courts to grant demurrer in criminal cases should be exercised with great caution, because not only the rights of the accused - but those of the offended party and the public interest as well - are involved. Once granted, the accused is acquitted and the offended party may be left with no recourse. Thus, in the resolution of demurrers, judges must act with utmost circumspection and must engage in intelligent deliberation and reflection, drawing on their experience, the law and jurisprudence, and delicately evaluating the evidence on hand. (People vs. Go, et al., G.R. No. 191015, August 06, 2014).


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