Demurrer to Evidence in the Philippines: With Leave vs. Without Leave Explained

Updated for the 2019 Revised Rules of Court (Civil and Criminal Procedure). This article walks you through what a demurrer to evidence is, when and how to file it, and the strategic trade-offs between filing with leave and without leave—in both civil and criminal cases.

What is a demurrer to evidence?

A demurrer to evidence asks the court to dismiss the case after the plaintiff (civil) or the prosecution (criminal) has rested, on the ground that the evidence they presented—even if taken as true and viewed in the light most favorable to them—does not establish a right to relief (civil) or guilt beyond reasonable doubt (criminal).

Civil cases: Rule 33.
Criminal cases: Rule 119, Sec. 23.

A demurrer tests legal sufficiency, not credibility in the weighing sense. It admits the truth of the evidence presented and the reasonable inferences arising from it, and then asks: Even assuming all that, is there a case to answer?

Demurrer in Civil Cases (Rule 33)

Timing

When: After the plaintiff completes the presentation of evidence.
How: By motion to dismiss on the ground that the plaintiff has shown no right to relief.

Standard

Whether plaintiff’s evidence, taken as true with all favorable inferences, fails to establish a prima facie right to relief.

If the demurrer is denied

The defendant may present evidence as a matter of right.

If the demurrer is granted

Judgment is rendered for the defendant.
Under the 2019 revisions: If that judgment is reversed on appeal, the case is remanded and the defendant is given the opportunity to present evidence. This is a key change from the old rule (pre-2019), where a reversal could mean the defendant was deemed to have waived the right to present evidence.

Strategic notes (civil)

Best suited where plaintiff missed an essential element (e.g., no proof of causation or ownership) or where a rule of law forecloses relief (e.g., Statute of Frauds without any applicable exception and no secondary evidence).
Because you do not waive your right to present evidence if the demurrer is denied (and you can still present evidence on remand if a grant is reversed), a civil demurrer has modest downside and can streamline litigation.

Demurrer in Criminal Cases (Rule 119, Sec. 23)

Timing & Mechanics

After the prosecution rests.
The accused may file a demurrer with or without leave of court.
Motion for leave: Filed within five (5) days from the time the prosecution rests (non-extendible).
If leave is granted, the demurrer itself is filed within ten (10) days from notice; the prosecution may oppose within ten (10) days; the court resolves within thirty (30) days from submission.
The court may also dismiss motu proprio (on its own) after the prosecution rests if the evidence is insufficient—the equivalent of granting a demurrer.

Key distinction: The with-leave vs. without-leave choice exists only in criminal demurrers. In civil cases, there is no “leave” concept.

Standard

Whether the prosecution’s evidence, with all favorable inferences, fails to prove guilt beyond reasonable doubt. The court does not require the defense to present evidence unless the prosecution has first established a case requiring an answer.

Consequences of filing with leave vs. without leave

Scenario	If Denied	If Granted
With leave of court	Accused may still present evidence; trial proceeds to defense stage.	Case is dismissed; typically an acquittal, barring appeal on double-jeopardy grounds (see below).
Without leave of court	Accused is deemed to have waived the right to present evidence. Case is submitted for decision on the prosecution’s evidence alone.	Same as above: dismissal/acquittal; ordinarily unappealable by the People due to double jeopardy (subject to the certiorari exception).

Double jeopardy and review

A grant of a criminal demurrer acquits the accused. The People cannot appeal because of double jeopardy.
Exception: The People may file a Rule 65 petition for certiorari alleging grave abuse of discretion amounting to lack or excess of jurisdiction. This does not seek a review of the case on the merits but challenges jurisdictional error. Absent grave abuse, the acquittal stands.

Practical pitfalls & tips (criminal)

Know the record cold. A demurrer concedes the truth of the prosecution’s proof; you win by showing an essential element is missing or inadmissible evidence cannot fill the gap.
Elements checklist. Map every element of the offense to the prosecution’s exhibits and testimonies; highlight absences (e.g., lack of corpus delicti, lack of qualifying circumstances, improper chain of custody in dangerous drugs cases, absence of identification linking the accused).
Foundation & admissibility. If key exhibits are inadmissible (e.g., hearsay without exception, uncured best-evidence issues, broken chain of custody), flag this; the court cannot rely on incompetent evidence to convict.
Risk management:
- If the case is close and you have exculpatory evidence, file with leave.
- If the prosecution’s case is palpably hollow and you plan to rest on the People’s failure, you may consider without leave—but recognize the waiver risk if the court disagrees.

Comparing Civil vs. Criminal Demurrers

Aspect	Civil (Rule 33)	Criminal (Rule 119, Sec. 23)
When filed	After plaintiff rests	After prosecution rests
Standard	No right to relief shown (prima facie failure)	Evidence fails to prove guilt beyond reasonable doubt
Leave of court?	No	Yes (optional): with or without)
If denied	Defendant may present evidence	With leave: accused may present evidence; without leave: accused waives evidence
If granted	Judgment for defendant; if reversed on appeal, remand for defense evidence (2019 rule)	Acquittal; People’s appeal barred by double jeopardy, save Rule 65 on grave abuse
Court motu proprio	Not typical; motion by defendant	Yes; court may dismiss after prosecution rests

How courts analyze demurrers

Assume the non-movant’s evidence is true.
Include reasonable inferences favorable to the non-movant.
Ignore incompetent evidence (excluded, hearsay without exception, violations of evidentiary rules).
Ask whether the evidence establishes all elements (criminal) or a cause/right to relief (civil).
If not, dismiss; if yes, deny the demurrer and proceed.

Step-by-step: Filing a Criminal Demurrer (with leave)

After the prosecution rests, file a Motion for Leave to File Demurrer to Evidence within 5 days (non-extendible).
- Briefly show where the prosecution’s proof fails (element tables help).
If leave is granted, file the Demurrer to Evidence within 10 days from notice.
Prosecution may oppose within 10 days.
Court resolves within 30 days from submission.
If denied, you present evidence; if granted, the accused is acquitted.

Filing without leave

File the demurrer outright after the prosecution rests.
If denied, you cannot present evidence; the case is submitted for decision based solely on the prosecution’s case. Use this path only if the insufficiency is clear-cut.

Step-by-step: Filing a Civil Demurrer (Rule 33)

After plaintiff rests, file a Motion to Dismiss by Demurrer to Evidence.
Show the missing element(s), or that the law does not allow relief on the established facts.
If denied, proceed to defense evidence.
If granted and reversed on appeal, the case is remanded for reception of defense evidence (2019 rule).

Drafting pointers (both civil and criminal)

Element-by-element matrix. A one-page table mapping each legal element to the specific proof (or lack thereof) is persuasive and judicially efficient.
Cite admissibility rulings on record. If exhibits were excluded or admitted provisionally, address them.
Neutral tone. Courts expect a legal sufficiency argument, not a credibility attack (which is for trial fact-finding, not demurrer).
Relief prayed for. In criminal, ask for acquittal; in civil, ask for dismissal with costs (or as appropriate), and in the alternative, leave to present evidence if the court is inclined to deny.

Common fact patterns where demurrers succeed

Criminal

Drugs: Broken chain of custody; non-compliance with Section 21 requirements without justifiable grounds; lack of marking/witnesses and no preservation of integrity.
Qualified offenses: Absence of qualifying circumstance (e.g., dwelling, treachery) proven by competent evidence.
Theft/robbery/estafa: No proof of ownership/possession, no deceit at the inception, or purely civil breach of contract.
Homicide/murder: Identification rests solely on uncorroborated hearsay or an equivocal eyewitness account without positive identification.

Civil

Collections: No competent proof of the loan/account (e.g., no business records foundation, no proving of due execution and authenticity).
Real actions: Plaintiff fails to prove title or prior possession.
Damages: No competent proof of actual damages (receipts), or no causal link between act and injury.

Collateral issues

Bail: If a criminal demurrer is granted, the accused is released unless held for another cause. If pending, bail remains until finality.
Judicial notice: Courts cannot fill gaps by judicial notice on disputed matters; demurrers often fail when the court incorrectly supplies missing proof via notice.
Partial demurrer? In practice, a demurrer challenges overall sufficiency; but you may focus the argument on missing essential elements or qualifying circumstances that raise the penalty.

Quick checklists

Criminal (Rule 119, Sec. 23)

Prosecution rested (order noted).
Within 5 days: Motion for leave (if choosing with leave).
Element matrix shows a missing essential element or inadmissible linchpin.
Address evidentiary defects (e.g., chain of custody, hearsay, lack of authentication).
Prayer: grant demurrer (acquittal); in the alternative (if filing with leave), allow defense to present evidence upon denial.

Civil (Rule 33)

Plaintiff rested (order noted).
Motion articulates no right to relief even assuming plaintiff’s evidence true.
Identify dispositive gap(s) (element not proven; legal bar).
Prayer: dismiss; if denied, proceed to defense evidence. Note remand right if grant is reversed on appeal (2019 rule).

Bottom line

In civil cases, a demurrer is a relatively low-risk efficiency tool: if denied, you still put on your case; if granted and reversed on appeal, you now get to present evidence on remand under the 2019 rules.
In criminal cases, the with-leave vs. without-leave decision is strategic and consequential:
- With leave preserves your right to present evidence if the demurrer is denied.
- Without leave raises the stakes—you waive your right to present evidence if the court disagrees.
A grant of a criminal demurrer results in acquittal and triggers double-jeopardy protections, subject only to the grave-abuse certiorari exception.

Used well, the demurrer to evidence enforces the prosecution’s and plaintiff’s burden to prove their case, prevents convictions or judgments on legally insufficient proof, and streamlines trials to what truly needs to be tried.