(Philippine legal article; general information only, not legal advice.)

A demurrer to evidence in Philippine criminal procedure is a motion filed by the accused after the prosecution rests asking the court to dismiss the case on the ground that the prosecution’s evidence is insufficient to convict. It is the criminal-law counterpart of saying: “Even if everything the prosecution presented is taken as true, it still doesn’t prove guilt beyond reasonable doubt.”

The governing rule is Rule 119, Section 23 of the Rules of Criminal Procedure, as amended.

1. Nature and Purpose

What a demurrer is

A demurrer to evidence is:

A challenge to the sufficiency of the prosecution’s evidence.
Filed only after the prosecution formally rests its case.
Resolved by the court before the defense presents evidence (if demurrer is denied with leave).

Why it exists

It protects the accused from having to present a defense when:

The prosecution has failed to establish a prima facie case.
The evidence does not meet the constitutional standard of proof beyond reasonable doubt.

2. When You May File

A demurrer is available only at a specific procedural moment:

Prosecution presents all its evidence.
Prosecution offers its evidence and rests.
Court issues an order considering the prosecution’s case submitted.
Accused may file demurrer to evidence.

Before the prosecution rests, no demurrer is allowed.

3. Two Types of Demurrer

A. Demurrer with leave of court

The accused first asks permission from the court to file a demurrer.
If leave is granted, the accused files the demurrer.

Effect if denied:

The accused may still present defense evidence afterward.

B. Demurrer without leave of court

The accused files demurrer directly, without asking permission.

Effect if denied:

The accused waives the right to present evidence and the case is decided solely on prosecution evidence. This is a high-risk move.

4. Deadline / Timing

Rule 119 provides:

The motion for leave (and/or the demurrer itself) must be filed within a non-extendible period of five (5) days after the prosecution rests, unless the court sets a different period.

Because courts often issue an order giving a specific window, always follow the trial court’s timeline. But absent a special period, 5 days is the rule and is non-extendible.

5. Standard for Granting

The legal test

The court asks:

Has the prosecution established guilt beyond reasonable doubt?
At minimum, has it established a prima facie case on all elements of the offense?

The demurrer should be granted if:

Any essential element of the crime is not proven.
Evidence is purely speculative, inadmissible, or fatally weak.
The prosecution’s case cannot support conviction as a matter of law.

What the judge considers

Only prosecution evidence on record.
The court generally does not weigh defense theories yet.
Doubts at this stage normally favor the accused because:
- The burden is on the prosecution.
- Presumption of innocence remains intact.

6. Form and Contents

A demurrer is a written motion that should include:

Caption and title “Demurrer to Evidence” (with or without leave).
Statement of procedural posture That prosecution has rested and evidence has been offered/admitted.
Grounds / arguments
- Identify missing elements.
- Highlight inconsistencies, lack of identification, gaps in chain of custody, absence of intent, etc.
- Note inadmissibility or unreliability when applicable.
Prayer Dismissal of the case.
Notice of hearing Under motion practice rules.

7. Procedure Step-by-Step

Option 1: With Leave

Prosecution rests.
Accused files Motion for Leave to File Demurrer within 5 days.
Court resolves motion for leave.
If leave granted, accused files demurrer within the period set by the court.
Prosecution may comment/opposition.
Court resolves demurrer.

Option 2: Without Leave

Prosecution rests.
Accused files demurrer directly within 5 days.
Prosecution opposes.
Court resolves demurrer.
If denied → accused cannot present evidence.

8. Effects of the Court’s Ruling

If demurrer is granted

Case is dismissed on insufficiency of evidence.
Equivalent to an acquittal.
Double jeopardy attaches → the accused cannot be tried again for the same offense.
The prosecution generally cannot appeal the acquittal, except through very narrow remedies (e.g., certiorari for grave abuse of discretion, not to review factual guilt).

If demurrer is denied

With leave: accused proceeds to present evidence.
Without leave: accused waives defense; court decides based on prosecution evidence alone and may convict if it finds proof beyond reasonable doubt based solely on that record.

9. Relationship to Constitutional Rights

A demurrer is tied to:

Presumption of innocence
Right to due process
Right against double jeopardy
Right to be heard

Granting demurrer is not a “technicality”; it is the court enforcing the prosecution’s burden.

10. Strategic Considerations

When a demurrer makes sense

Prosecution evidence is clearly deficient on an element.
Key witness testimony is uncorroborated, hearsay, or inconsistent.
Identification of accused is weak or absent.
In drug cases: chain of custody gaps or failure to comply with required procedures.
In sexual/violent crimes: lack of proof of force, consent issues, or impossible timelines.
In property crimes: no proof of ownership, value, or taking.

When to be cautious

If prosecution evidence is weak but not clearly fatal, a demurrer without leave is dangerous.
If the defense has strong affirmative evidence, you may prefer to present it rather than gamble on demurrer.
If denial is likely, seek leave to preserve the right to defend.

Typical defense mindset

Default safer option: file with leave.
Only file without leave when prosecution evidence is so poor that denial would be irrational.

11. Common Grounds by Category

(Illustrative, not exhaustive.)

A. Missing element(s)

Example structure:

Crime requires (1) act, (2) intent, (3) circumstance.
Prosecution proved (1) but did not prove (2) → no prima facie case.

B. Unreliable identification

No positive identification.
Identification based on guesswork or poor conditions.
Conflicting descriptions.

C. Inadmissible or hearsay evidence

Crucial proof not properly authenticated.
Testimony based on what another person said.

D. Narrative gaps

Evidence doesn’t connect accused to the act.
Timeline impossible or inconsistent.

E. Failure to overcome defenses apparent on prosecution evidence

Self-defense, accident, or lack of intent already evident from prosecution witnesses.

12. Demurrer vs. Other Remedies

Not the same as:

Motion to Dismiss (Rule 117): raised before arraignment/trial for legal defects (e.g., lack of jurisdiction, prescription, defect in information).
Judgment on the pleadings / summary judgment: civil concepts, not criminal.
Motion for reconsideration/new trial: after judgment.

Demurrer is mid-trial, after prosecution case.

13. Special Notes

A. Demurrer in cases tried by the Sandiganbayan / special courts

Still applies because Rule 119 governs criminal proceedings generally, unless special rules provide otherwise.

B. In contempt or quasi-criminal proceedings

Demurrer logic may apply by analogy, depending on procedure adopted.

C. Multiple accused

One accused may file demurrer individually.
Court may rule per accused, depending on evidence against each.

14. Practical Drafting Tips

Organize by elements. List elements → show what evidence exists → explain why insufficient.
Use the prosecution’s own witnesses. Highlight admissions or contradictions.
Avoid arguing defense facts. Focus on prosecution gaps.
Be precise about the record. Cite transcript portions / exhibits by date or label.
End with a clear legal conclusion: “Prosecution failed to establish a prima facie case; therefore dismissal is mandatory.”

15. Skeleton Sample (Very Brief)

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT / MTC Branch __, City of __

PEOPLE OF THE PHILIPPINES Plaintiff, vs. [ACCUSED] Accused.

CRIM. CASE NO. ____

DEMURRER TO EVIDENCE (WITH LEAVE OF COURT)

Accused, through counsel, respectfully states:

The prosecution has rested its case on [date], and its evidence has been admitted.

To convict for [offense], the prosecution must prove: (a)… (b)… (c)…

The prosecution failed to prove element (b) because…

Even assuming the evidence at face value, it does not establish guilt beyond reasonable doubt.

PRAYER WHEREFORE, accused prays that the case be dismissed for insufficiency of evidence.

Other reliefs just and equitable are likewise prayed for.

[Place, date, signature, notice of hearing, etc.]

16. Key Takeaways

Demurrer = post-prosecution motion to dismiss for insufficiency.
File after prosecution rests, usually within 5 non-extendible days.
With leave preserves right to present evidence if denied.
Without leave is a waiver gamble.
Granting demurrer is an acquittal; double jeopardy bars retrial.
Best drafted by element-by-element attack on prosecution proof.

If you want, I can also draft a longer sample demurrer template tailored to a specific offense (e.g., drug case, estafa, homicide), using a generic fact pattern—just tell me which crime you’re writing for.