Legal Opinion on Supreme Court Administrative Memorandum no. 03-1-09 SC By: Noel O. Bacalla, CrimPro Rm.

402 Generally, my impression on these guidelines to be observed by the trial court judges and clerks of court in the conduct of Pre-trial specifically on criminal cases which became effective August 16, !!" are additional burden to prosecutors, judges, clerks of court, and defense lawyers due to the additional procedures prescribed in said Administrative #emorandum$ Par$ 1 of the guideline which states that %&efore arraignment, the 'ourt shall issue an order directing the public prosecutor to submit the record of the preliminary investigation to the &ranch '(' for the latter to attach the same to the record of the criminal case$) *t is now presupposed that preliminary investigation is now re+uired in all criminal cases$ *t may be noted that there are criminal cases that do not re+uire a preliminary investigation$ ,hese are cases cited under -ection . of /ule 11 and those falling under the /ule on -ummary Procedure$ ,hus, with the newly issued guidelines ambiguity may arise whether preliminary investigation is now indeed re+uired in all criminal cases without e0ception$ 1oteworthy to mention that as provided for in -ection 2 par 3b4 of /ule 11 , which stated that preliminary investigation shall not form part of the record of the case$ 5owever, in these rules, the resolution of the investigating prosecutor and the supporting evidence adduced during the preliminary investigation shall be included in the filing of the information in order for the court to determine the e0istence of probable cause$ ,his may be another point of ambiguity since the record of the preliminary investigation shall be submitted to the clerk of court to be attached to the record of the case$ Paragraph of the guidelines has advantages and disadvantages$ *t would

seem that the purpose of the -upreme 'ourt in passing this memorandum is to strengthen and widen the parameters before the case be set for trial$ ,he judiciary is encouraged for the promotion of settling cases amicably, not only to lessen the e0penses of litigants but importantly to declog the trial courts of pending cases$

Another phrase is introduced in the guideline that after the arraignment of the accused that a preliminary conference done 6 days prior to the pre-trial conference proper$ ,his would hasten and clarify issues before the pre-trial conference$ &ut to my opinion, this is only a waste of time as this would only prolong the procedure wherein basically the same matters are taken up in the pre-trial conference proper$ #oreover, under paragraph 3c4 %informing the parties that no evidence shall

be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial e0cept when allowed by the court for good cause shown$) Per in+uiry with lawyer friends, it is the usual practice during the pre-trial conference that lawyers interpose a reservation of presenting additional witnesses in the course of the trial$ 1ow, this is disallowed$ ,his provision would have a striking effect on the defense of the accused$ As a matter of legal strategy, the defense lawyer does not disclose in advance or present evidence proving the innocence of the accused because as a matter of law, it is the prosecution who has the burden of proof of proving the guilt of the accused$ ,his presumption of innocence enjoyed by the accused allows the latter to withhold presentation of evidence during the pre-trial conference$ ,his it to avoid interception and destruction of the evidence for the accused$ Adopting these new guidelines will force the accused to produce evidence in his defense at a premature stage$ 'onse+uently, this destroys the 'onstitutional guarantee of presumption of innocence until proven otherwise$ ,his particular

proviso is favorable to the prosecution for they will be given concrete perspective on the defense7 theory$ 5ence, the prosecution is given the ample opportunity to secure evidence in anticipation of the evidence to be presented by the defense$ Although, in the same proviso, the court may allow the introduction of new evidence not taken up in the pre-trial conference during the trial only for good cause$ ,his implies that the court is empowered with wider latitude of discretion as to the conduct of the proceedings which may be subject to abuse by corrupt unscrupulous judges$ As an aspiring lawyer, in summary, these guidelines adopted by the highest

tribunal are preclude or conditions sine +ua non to trial proper$ *t is a remedial measure to temper the heated objections and technicalities to evidences presented by both parties during the trial and possibly eliminate the elevations of the same to the higher court$ 5owever, these guidelines are more burdensome and time consuming on the part of lawyers, judges, and clerks of court since this is an added stage in the judicial proceedings$

-ubmitted by8 Noel O. Bacalla 'rimpro /m$ "!