Effect of Affidavit of Desistance in Criminal Case
The effect of an affidavit of desistance in a criminal case is that,
It does not bar the State or the Government from prosecuting the
criminal action, but it operates as a waiver of the right to pursue
Related: Sample Form Affidavit of Desistance
An affidavit of desistance cannot justify dismissal of the complaint
if made after (and not before) the institution of the criminal
Related: Affidavit of Desistance Defined
You Might Be Interested To Know:
The kinds of Desistance Recognized by law under Art. 6 of the RPC
1. Legal desistance - the desistance referred to in law which would
obviate criminal liability unless the overt or preparatory act
already committed in themselves constitute a felony other than
what the actor intended.
2. Factual desistance - actual desistance of the actor which is made
after the attempted stage of the crime; the actor is still liable
for the attempt.
Sample Bar Exam Questions About the Effect of Affidavit of Desistance
in a Criminal Case.
Rape; Effect; Affidavit of Desistance (1993)
1. Ariel intimidated Rachel, a mental retardate, with a bolo
into having sexual Intercourse with him. Rachel's mother
immediately filed a complaint, supported by her sworn statement,
before the City Prosecutor's Office. After the necessary
preliminary investigation, an information was signed by the
prosecutor but did not contain the signature of Rachel nor of her
mother. Citing Art. 344 of the RPC (prosecution of the crimes of
rape, etc.), Ariel moves for the dismissal of the case. Resolve with
2. After the prosecution had rested its case, Ariel presented
a sworn affidavit of desistance executed by Rachel and her
mother stating that they are no longer interested in prosecuting
the case and that they have pardoned Ariel. What effect would
this affidavit of desistance have on the criminal and civil aspects
of the case? Explain fully.
1. The case should not be dismissed.
2. The affidavit of desistance will only amount to the condonation
of civil liability but not criminal liability hence the case
should still proceed.
Dismissal; Provisional Dismissal (2003)
Before the arraignment for the crime of murder, the private
complainant executed an Affidavit of Desistance stating that she was
not sure if the accused was the man who killed her husband. The
public prosecutor filed a Motion to Quash the Information on the
ground that with private complainant’s desistance, he did not have
evidence sufficient to convict the accused. On 02 January 2001, the
court without further proceedings granted the motion and provisionally
dismissed the case. The accused gave his express consent to the
provisional dismissal of the case. The offended party was notified of
the dismissal but she refused to give her consent. Subsequently, the
private complainant urged the public prosecutor to refile the murder
charge because the accused failed to pay the consideration which he
had promised for the execution of the Affidavit of Desistance. The
public prosecutor obliged and refiled the murder charge against the
accused on 01 February 2003, the accused filed a Motion to Quash the
Information on the ground that the provisional dismissal of the case
had already become permanent. (6%)
a. Was the provisional dismissal of the case proper?
b. Resolve the Motion to Quash.
a. The provisional dismissal of the case was proper because the
accused gave his express consent thereto and the offended party
was notified. It was not necessary for the offended party to give
her consent thereto. (Sec. 8 of Rule 117).
b. The motion to quash the information should be denied because,
while the provisional dismissal had already become permanent,
the prescriptive period for filing the murder charge had not
prescribed. There was no double jeopardy because the first case
was dismissed before the accused had pleaded to the charge.
(Sec. 7 of Rule 117).
Confession; Affidavit of Recantation (1998)
If the accused on the witness stand repeats his earlier uncounseled
extrajudicial confession implicating his co-
accused in the crime charged,
1. Is that testimony admissible in evidence against the latter? (3%)
2. What is the probative value of a witness' Affidavit of
1. Yes. The accused can testify by repeating his earlier
uncounseled extrajudicial confession, because he can be
subjected to cross-examination.
2. On the probative value of an affidavit of recantation,
courts look with disfavor upon recantations because they
can easily be secured from witnesses, usually through
intimidation or for a monetary consideration, Recanted
testimony is exceedingly unreliable. There is always the