Effect of Affidavit of Desistance in Criminal Case
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
civil indemnity.
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
action.
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
reasons.
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.
SUGGESTED ANSWER:
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.
SUGGESTED ANSWER:
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
Recantation? (2%)
SUGGESTED ANSWER:
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
probability.
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Bigwas
I'm Bigwas. I have a degree in Criminology and Law.English is not my major. I'm a web developer by day and a blogger by night. I hope you learn something from my blog.
Hi Sir Bigwas, can I ask what to do... I filed a case way back 2010 to the father of my children for refusing not to give allowance for the kids and to help in financial needs. We aren't married. In 2011 court found him guilty of violation RA9262 and with that we come up to an agreement. But a problem was that he is not complying to the agreement. I had signed an affidavit of desistance for the case before. Can I file him another case? And what can that be? I will really appreciate your response. Please let me know. Thank you so much.
ReplyDeleteFuture Support under the family code can not be subject of a compromise agreement. You are entitled to support. Any agreement which is contrary to law is not valid.
ReplyDeleteGood day sir, last year i had an accident involving a single motorcycle with 2 rider. i accidentally hit the rear potion of the motorcycle because a speeding third party vehicle suddenly appeared to the right-side and cut me off and i was forced to stirred the wheel to the left and hit the motorcycle. To make the story short, i paid all the hospital expenses and for the repair of the motorcycle. the next day i informed my insurance provider and settled the claim the next day, the insurance representative when to their house, paid them in cash for settlement and both victims signed the RELEASE OF CLAIM and AFFIDAVIT OF DESISTANCE. After a few weeks, the victim's mother still asking for sum of money. If i will not settle with them, they will filed a criminal complaint against me and telling me that the affidavit of desistance they signed was not valid because it is not notarized. They i informed my insurance provider and told me let them file the complain and we will see them in court. Now, the court had issued a warrant for my arrest and set a bail for my temporary release.
ReplyDeleteMy questions are:
1. will the release of claim and affidavit of desistance will stand as evidence in court, EVEN NOT NOTARIZED BECAUSE SETTLEMENT HAPPENED INSIDE THEIR HOUSE, that we already settled the claim?
2. Can i file a perjury case and damages against them to teach them a lesson for being dishonest?
3. how came the case reaches court proceedings?
PORTION OF THE AFFIDAVIT OF DESISTANCE STATED THAT: THEY ARE NO LONGER INTERESTED PURSUING CRIMINAL AND CIVIL CASE AGAINST MY INSURANCE PROVIDER AND ME AND FOREVER DISCHARGE ?????ME????? and ?????(insurance provider)???? from any civil and criminal liability.
presently we already filed a MOTION TO QUASH and waiting for the court to decide.
I advice you to seek the counsel of a member of the bar near
ReplyDeleteyou ASAP to better protect your rights.
A case have already been filed against you and bail set.
I assume that you already contracted the services of an
Attorney as you already filed a motion to quash.
Only a member of the bar is allowed as an officer of the
court to file pleadings before it.
Follow the advice of your lawyer. He is in a better position
to advice you to fully protect your rights under the law.