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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