Demurrer to Evidence in the Philippines: With or Without Leave of Court Explained

A demurrer to evidence is a procedural device that asks the court to dismiss a case after the plaintiff (civil) or the prosecution (criminal) has rested, on the ground that the evidence presented is legally insufficient to warrant relief (civil) or a conviction (criminal). It functions as the bench-trial equivalent of a directed verdict in jury systems. Philippine rules treat demurrers differently in civil and criminal cases, particularly on the need for leave of court and the consequences of denial or grant.

Below is a practitioner-oriented, Philippine-specific guide that consolidates doctrine, rules, timing, standards, pitfalls, and remedies.

I. Two Regimes, Two Rulebooks

Civil cases: Governed by Rule 33 (Demurrer to Evidence) of the Rules of Court (as amended).
Criminal cases: Governed by Rule 119, Section 23.

The phrase “with or without leave of court” is crucial in criminal cases; in civil cases, leave is not a prerequisite and the defendant preserves the right to present evidence even if the demurrer is denied.

II. Civil Demurrer to Evidence (Rule 33)

A. When Available

Timing: After the plaintiff rests, i.e., after formally offering and closing evidence-in-chief.
Scope: May target the entire complaint or discrete causes of action/claims where the plaintiff’s proof is deficient (courts may render partial judgments for resolvable claims).

B. Standard of Review

Court asks: Assuming the plaintiff’s evidence is true and taken in the light most favorable to the plaintiff, does it establish a right to relief by a preponderance (or at least a prima facie case that would justify judgment)?
The judge may assess credibility and exclude incompetent evidence (e.g., hearsay without exception, unauthenticated documents).

C. Form & Contents

Motion (written or oral on record) stating:
- The element(s) not proven.
- Pinpoint record citations to admitted exhibits/testimony.
- Evidentiary objections (competence, relevance, materiality; failure to authenticate; secondary evidence without predicate; best-evidence rule).
- Legal insufficiency (even if facts were true, the law affords no relief).

D. Consequences

If Denied: Defendant still has the right to present evidence. The denial is interlocutory; review is normally via appeal from the final judgment, not immediately. A Rule 65 certiorari is exceptional (grave abuse of discretion and no other plain, speedy, adequate remedy).
If Granted: Court renders judgment on the merits for the defendant.
- Plaintiff’s remedies: Motion for reconsideration (MR) or appeal.
- If reversed on appeal: The defendant must be allowed to present evidence (no waiver—this is built into Rule 33).

E. Strategic Notes (Civil)

Preserve objections during trial; Rule 33 isn’t a substitute for contemporaneous objections.
Use partial demurrers to streamline multi-claim suits (e.g., dismiss damages theories unsupported by proof of causation or quantification).
A granted demurrer may have effects on counterclaims: permissive counterclaims can still be adjudicated if evidence of the counterclaim was adduced or is otherwise ripe; otherwise, courts commonly proceed to receive defense proof or reserve resolution as appropriate.

III. Criminal Demurrer to Evidence (Rule 119, Sec. 23)

A. When Available

Timing: After the prosecution rests (i.e., after its evidence is formally offered and admitted or ruled upon).
Leave of Court: May be filed with or without leave—and this choice profoundly affects rights.

B. Standard of Review

Court asks: Do the people’s evidence and reasonable inferences therefrom prove each essential element of the offense(s) and the accused’s identity as perpetrator beyond reasonable doubt?
The court may exclude inadmissible evidence and disregard inherently incredible testimony; however, it cannot speculate on defense evidence that doesn’t exist yet.

C. Deadlines & Mechanics (typical practice)

Motion for leave: Filed within a short, non-extendible period after the prosecution rests (commonly 5 days, with the prosecution given a similar period to comment).
If leave is granted: The demurrer itself is filed within the court-fixed period (often 10 days), with the prosecution getting time to oppose.
If leave is denied:
- With leave: Accused may still present evidence.
- Without leave: Denial = waiver of the right to present evidence; the case is submitted for decision on the prosecution’s evidence alone.

Key difference from civil: In criminal cases, filing a demurrer without leave is a high-risk, high-reward move. If denied, the accused loses the right to present defense evidence.

D. Consequences

If Denied:
- With leave: Defense proceeds with evidence.
- Without leave: Case submitted for judgment; no defense case. Denial is interlocutory; no ordinary appeal. Certiorari (Rule 65) is possible only on grave abuse of discretion and rarely stays proceedings without injunctive relief.
If Granted: Acquittal (or dismissal equivalent thereto).
- Double jeopardy generally bars appeal by the prosecution.
- Exception: The People may file Rule 65 certiorari alleging grave abuse of discretion amounting to lack or excess of jurisdiction (e.g., the court blatantly ignored material evidence or applied the wrong legal yardstick). If granted, the acquittal may be voided and the case remanded for trial—this does not violate the double-jeopardy clause when the original judgment is void for jurisdictional error.

E. Strategic Notes (Criminal)

When to seek leave: Seek leave unless the prosecution’s case is catastrophically weak and you’re comfortable risking waiver.
Element-by-element attack: Organize the demurrer around each element; identify which exhibits are incompetent, which testimonies are hearsay, and which links in the chain of custody (for drugs/forensics) are broken.
Identity proof is distinct from corpus delicti; courts often emphasize positive identification and chain-of-custody compliance (e.g., Section 21 of the Dangerous Drugs Act).
Complex cases (estafa through falsification, multi-count informations): Consider partial demurrers to narrow charges where the People failed to prove particular counts or modes of commission.

IV. Comparing Civil vs. Criminal Demurrers at a Glance

Feature	Civil (Rule 33)	Criminal (Rule 119, §23)
When filed	After plaintiff rests	After prosecution rests
Leave of court?	Not required; right to present evidence is preserved even if denied	With or without leave. Without leave + denial = waiver of right to present evidence
Standard	Failure to establish right to relief (preponderance/prima facie)	Failure to establish guilt beyond reasonable doubt
If denied	Defendant still presents evidence; denial is interlocutory	With leave: defense may present; without leave: no defense evidence
If granted	Judgment on the merits for defendant; plaintiff may appeal	Acquittal; prosecution cannot appeal, but may file certiorari on grave abuse
If grant is reversed	Defendant gets to present evidence on remand	Case may be remanded; double jeopardy not offended if original acquittal was void for jurisdictional error
Partial demurrer	Permitted in practice (dispose of specific claims)	Permitted (dispose of certain counts/modes)

V. Substantive & Evidentiary Themes That Often Win Demurrers

Missing elements: A claim/charge fails if any single essential element lacks competent proof.
Incompetent evidence: Hearsay, unauthenticated documents, unsigned contracts, photocopies without foundation, electronic evidence without compliance with certification or authenticity rules.
Illegally obtained evidence (criminal): Exclusion under constitutional and statutory rules (e.g., warrantless search exceptions not met).
Chain-of-custody defects (criminal, especially drugs and forensics): Breaks/uncertainties can be fatal.
Failure to prove damages (civil): Liquidated vs unliquidated damages; lack of documentary substantiation (e.g., receipts, business records) or competent expert proof for claims like lost profits.
Agency/authority gaps: Corporate authority not proven; no board resolution; special power of attorney missing for acts requiring it.
Prescription/condition precedents: When the plaintiff’s own evidence shows the action is time-barred or a mandatory precondition (e.g., barangay conciliation, contractual notice) was not complied with.

VI. Practical Drafting Tips

A. Structure (both civil and criminal)

Introduction & relief sought (dismissal/acquittal as to which claims/counts).
Procedural posture (that the plaintiff/prosecution has rested; dates of formal offers).
Governing standard (Rule 33 or Rule 119 §23).
Statement of material facts per record (no defense facts).
Argument, element-by-element, with record citations and evidentiary objections.
Prayer (including partial relief if appropriate).

B. Style & Proof

Use table charts cross-walking elements → exhibits/testimony → deficiency.
Anchor to admissions and concessions (cross-exam answers; stipulations).
For documents, highlight lack of signatures, inadmissible photocopies, or electronic evidence defects (authentication, integrity).
In criminal cases, emphasize reasonable doubt, not just formal technicalities.

VII. Remedies & Post-Ruling Practice

Civil
- Grant: Plaintiff may MR or appeal. Execution stayed by appeal.
- Denial: Defendant presents evidence; no immediate appeal. Certiorari only if grave abuse and urgent.
Criminal
- Grant (acquittal): Accused is ordinarily released; bail cancelled. The People may pursue certiorari on grave abuse (a narrow door).
- Denial:
  - With leave: Put up the defense case.
  - Without leave: Case submitted for decision; consider provisional remedies (e.g., renew bail, house arrest issues) only if applicable.

VIII. Frequently Asked Tactical Questions

1) Should I ever file a criminal demurrer without leave? Only if the prosecution’s case is so defective that denial is improbable. Otherwise, seek leave to avoid waiver.

2) Can I file a demurrer to evidence based on credibility alone? Yes—if the testimony is inherently incredible, evasive, or contradicted by the record. Courts can assess credibility on the plaintiff/prosecution case as presented.

3) Can the court consider my defense theory when ruling? No. The demurrer is tested on the case of the party with the burden. The court may not hypothesize defense evidence.

4) What if the plaintiff/prosecution failed to formally offer evidence? Un-offered exhibits/testimony ordinarily cannot be considered, absent exceptions (e.g., testimonial admissions on record). This is a recurrent winning ground.

5) Is a partial grant possible? Yes. Courts can dismiss particular claims or counts while allowing others to proceed.

IX. Skeleton Templates (Illustrative)

Civil Demurrer to Evidence (Rule 33) Case Title/Number DEFENDANT’S DEMURRER TO EVIDENCE

Posture: Plaintiff rested on [date]; formal offer resolved on [date].

Standard: Rule 33; plaintiff must prove elements by preponderance.

Argument: A. No cause of action (element X missing): [record cites]. B. Incompetent evidence: [hearsay/authentication defects]. C. Damages unproven: [no receipts/expert].

Prayer: Dismiss complaint (or specific causes), with costs. Notice of Hearing / Proof of Service

Criminal Demurrer to Evidence (Rule 119 §23, with leave) People v. [Accused], Criminal Case No. ACC–USED’S MOTION FOR LEAVE TO FILE DEMURRER TO EVIDENCE

Posture: Prosecution rested on [date].

Grounds (specific): Element(s) A/B/C not proved; [chain-of-custody gap; identity].

Prayer: Grant leave; upon leave, accused to file demurrer within [X] days.

ACC–USED’S DEMURRER TO EVIDENCE (file if leave is granted)

Standard: Guilt beyond reasonable doubt not met.

Argument: Element-by-element deficiencies with record citations.

Prayer: Dismiss Information(s)/acquit.

X. Common Pitfalls

Criminal demurrer without leave filed reflexively: if denied, you lose your defense case.
Failure to attack each element: Courts often deny where one essential element is left unaddressed.
Overreliance on technicalities: Courts may deny if the substantive proof is still strong despite minor defects.
Neglecting formal offer issues: Allowing inadmissible exhibits to be considered because objections were not pressed.
Mis-timing: Filing before the plaintiff/prosecution truly rests (or before rulings on formal offers) risks denial as premature.

XI. Takeaways

Civil: Rule 33 is comparatively forgiving; no leave required, and you retain the right to present evidence if denied.
Criminal: Choose between “with leave” and “without leave” wisely. Denial without leave forfeits your defense evidence; grant typically results in acquittal shielded by double jeopardy, save for grave-abuse certiorari.
Win demurrers by tight element-by-element analysis, evidentiary rigor, and precise record citations.

This article summarizes procedural doctrine and strategy on demurrers to evidence in the Philippines’ civil and criminal litigation. For case-specific application, align with the latest Rules, local practice directions, and controlling jurisprudence.