Lack of Affidavit of Merit in a Motion for New Trial Not Fatal

In criminal cases, the lack of affidavits of merit in a motion for new trial is not a fatal defect and can be cured by the testimony presented at the new trial. 

PAREDES vs. BORJA
G.R. No. L-15559, November 29, 1961
3 SCRA 495

Facts: The appellee contends that the respondent Justice of the Peace Court should not have entertained the appellant's motions for reconsideration because they were not supported by affidavits.

Held: While the Rules of Court also require, as in the supplanted law, that an affidavit of merit be attached to support a motion for new trial based on newly discovered evidence, yet the defect of lack of it in the appellant's motions for reconsideration or rehearsing had been cured by the testimony under oath of the appellant at the hearing of the motion for reconsideration.

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Requisites for a New Trial or Reconsideration

1.) In writing and filed with the court

2.) Clearly state the grounds on which it is based

3.) If based on a newly-discovered evidence, it must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which are proposed to be introduced in evidence. (Rules of Court, Rule 121, Section 4)

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Grounds for New Trial or Reconsideration

A. Grounds for New Trial

(a)  Errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial;

(b)  New and material evidence has been discovered which   the   accused could not with reasonable   diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. 

(c)  Meritorious circumstances as determined by the court on a case-to-case basis, such as:

3.1)  Retraction of a witness;

3.2) Negligence of incompentency of counsel that is so gross as to amount to deprivation of due process;

3.3)  Improvident plea of guilty; and

3.4) Disqualification of an attorney de officio to represent the accused in trial court.

B. Grounds for Reconsideration

Errors of law or fact in the judg­ment which requires no further proceedings. 


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(Taken from the Rules of Court, Rule 121, Sections 2 and 3 and Criminal Procedure by Diodado M. Peralta)

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Rights of the Accused at Trial

In all criminal prosecutions, the accused shall be entitled to the following rights:

(a)  To be presumed innocent until the contrary is proved beyond reasonable doubt.

(b)  To be informed of the nature and cause of the accusation against him.

(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his tail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.

(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.

(e) To  be  exempt from  being compelled to  be  a witness against himself.

(f)  To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.

(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.

(h) To have speedy, impartial and public trial.

(i)  To appeal in all cases allowed and in the manner prescribed by law. (Rules of Court, Rulle 115, Section 1)

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Amendment or Substitution

A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. 

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party, (n)

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (Rules of Court, Rule 110, Section 14)

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