Filing a Motion for Leave to File Demurrer to Evidence in the Philippines

This article is a general guide and does not constitute legal advice. Court rules change and jurisprudence evolves; consult current rules and authorities for case-specific decisions.

1) What a Demurrer to Evidence Is

A demurrer to evidence is a pleading that asks the court to dismiss a case after the prosecution (in criminal cases) or the plaintiff (in civil cases) has rested, on the ground that the evidence presented is insufficient as a matter of law to sustain a conviction or a judgment. It tests legal sufficiency, not weight or credibility as resolved by the trier of fact.

Criminal cases: governed by the Rules of Criminal Procedure (Rule 119, Demurrer to Evidence).
Civil cases: governed by Rule 33 (Demurrer to Evidence).

Although both are called “demurrer,” the procedural posture and consequences differ significantly. This article focuses on criminal demurrers—specifically the Motion for Leave to File Demurrer to Evidence—and then contrasts with civil practice.

2) Legal Basis and Core Concepts (Criminal)

A. Timing

When available: Only after the prosecution rests and has formally offered its evidence (or resting is recorded on the minutes).
Court action motu proprio: Even without a motion, the court may dismiss the case on its own after the prosecution rests if the evidence is legally insufficient.

B. With or Without Leave of Court

With leave (recommended):
- The accused first files a Motion for Leave to File Demurrer to Evidence explaining why the prosecution’s evidence fails to establish guilt beyond reasonable doubt (or fails to establish an essential element, identity, jurisdiction, etc.).
- If leave is granted, the accused then files the Demurrer to Evidence. If the demurrer is denied, the accused may still present evidence.
Without leave (high risk):
- The accused may file a demurrer without leave.
- If denied, the accused waives the right to present evidence, and the case is submitted for decision based solely on the prosecution’s case and any admissions.

Because of this risk, practitioners almost always seek leave first.

C. Standard

The question is legal sufficiency: taking the prosecution’s evidence at face value (and in the light most favorable to the People), has a prima facie case been established on each essential element and the identity of the accused as the perpetrator? Gaps on corpus delicti, elements, jurisdiction/venue, qualifying/attendant circumstances, or admissibility often drive demurrers.

D. Effects of Grant or Denial

If granted: results in an acquittal. As a rule, acquittals are final and unappealable due to double jeopardy. The prosecution’s recourse, in exceptional cases, is a petition for certiorari (Rule 65) alleging grave abuse of discretion amounting to lack or excess of jurisdiction.
If denied (with leave): the defense presents evidence.
If denied (without leave): defense waives evidence, case is submitted for decision.

3) Strategic Grounds Commonly Raised

Failure to establish an essential element
- Example: In theft, no competent proof of taking or intent to gain; in drugs, broken chain of custody or non-compliance with required safeguards; in estafa, no damage or deceit.
Identity not proven
- Unreliable identification; tainted or suggestive out-of-court identification; witness inconsistencies that destroy the identification’s legal sufficiency.
Inadmissible or excluded evidence
- Evidence obtained in violation of constitutional rights; hearsay without exceptions; uncertified electronic or documentary evidence; lack of proper offer or authentication; illegally seized items.
Jurisdiction and venue defects
- Offense not shown to have been committed within territorial jurisdiction; for special courts, absence of facts conferring special jurisdiction.
Qualifying circumstances not proven
- Where the offense’s higher penalty depends on special or qualifying facts (e.g., use of a deadly weapon, relationship, amount, age/vulnerability), failure of proof on those facts can defeat the qualified charge even if a lesser offense may appear.
Variance doctrine implications
- The prosecution’s evidence proves a different offense or a mere attempt/lesser included offense that was not charged (raising due-process concerns).

4) Drafting the Motion for Leave (Criminal)

A. Form and Core Contents

Caption appropriate to the court, case number, title.
Title: “Motion for Leave to File Demurrer to Evidence.”
Introductory averments: That the prosecution has rested and the court’s leave is sought.
Grounds and discussion:
- Identify specific elements not proven by the prosecution’s competent and admissible evidence.
- Point out fatal gaps (e.g., no proof of ownership, no nexus in buy-bust, chain-of-custody breaks, lack of intent).
- Address admissibility (e.g., best evidence rule, authentication, illegal search, fruit of the poisonous tree).
- Cite controlling rules/jurisprudence (case-specific).
Prayer: Grant leave; upon grant, allow filing of the demurrer within the period set by the court.
Notice and service per the rules.

B. Supporting Annexes (as needed)

Transcript excerpts (prosecution witnesses’ admissions).
Orders (showing resting; rulings excluding evidence).
Documentary red flags (e.g., chain-of-custody inventory gaps, absence of required witnesses).

C. Hearing

Courts often require a hearing or accept the motion via written submissions. Be ready with a short, element-by-element chart tying each charged element to the record—and showing the missing links.

5) Filing the Demurrer (After Leave Is Granted)

Title: “Demurrer to Evidence.”
Theory: Even taking the prosecution’s case at its strongest, no conviction may stand.
Structure:
1. Overview of the charge and elements;
2. Admissibility objections that eliminate crucial exhibits/testimony;
3. Element-by-element analysis showing absence of proof;
4. Identity and mens rea/intent analysis;
5. Relief: Dismissal/acquittal.

Include a proposed form of judgment (acquittal) for efficiency.

6) Practical Checklist (Criminal)

✅ Prosecution has rested (and formally offered evidence).
✅ Objections preserved (but remember: demurrer attacks legal sufficiency even aside from objections; still, exclusionary rulings help).
✅ Seek leave first unless a very narrow, purely legal defect makes the risk acceptable.
✅ Record-based: Anchor every claim to transcripts, exhibits, and orders.
✅ Admissibility rulings: Identify exhibits that must be disregarded.
✅ Identity & elements chart: A table shows at a glance what’s missing.
✅ Double jeopardy awareness: If granted, the judgment is acquittal; the State’s recourse is narrowly confined.
✅ Case management: If leave is denied, be ready to present defense evidence immediately (witnesses on call, exhibits marked).

7) Common Pitfalls

Filing before the prosecution truly “rests.”
- If the prosecution hasn’t formally rested or evidence is still being offered/supplemented, the motion may be premature.
Arguing weight, not sufficiency.
- A demurrer is not a closing argument on credibility. Focus on legal gaps.
Overlooking admissibility foundations.
- If key exhibits are inadmissible and you fail to isolate why, the court might still consider them.
Skipping leave of court.
- Filing without leave and losing means waiver of defense evidence—often outcome-determinative.
Misjudging identity or corpus delicti.
- Courts are deferential to a prima facie showing. You must demonstrate no prima facie case, not merely a weak one.
Ignoring special elements in special laws.
- Special statutes (e.g., anti-graft, drugs, cybercrime, banking) often have technical requisites; failure to address them can sink the demurrer.

8) Civil Demurrer to Evidence (Contrast)

When available: After the plaintiff rests.
Leave of court: Not required to file; however—
- If granted and later reversed on appeal, the defendant is deemed to have waived the right to present evidence (judgment may be rendered on the record).
- If denied, the defendant typically presents evidence (no automatic waiver as in criminal “without leave”).
Standard: Whether plaintiff’s evidence, taken most favorably to the plaintiff, fails to establish a right to relief.
Relief: Dismissal (which may be with or without prejudice, depending on the ground and stage).

9) Sample Templates (Criminal)

[Caption] MOTION FOR LEAVE TO FILE DEMURRER TO EVIDENCE Accused, by counsel, respectfully states:

The Prosecution has rested and formally offered its evidence on [date].

With due respect, the People’s evidence fails to establish a prima facie case of [offense] against the Accused because: a) [Element 1] — No competent proof of ______; b) [Element 2] — Exhibit “” is inadmissible for ________; c) Identity — Witness(es) admitted ________ indicating misidentification; d) Jurisdiction/venue — Record is silent on ________.

Under Rule 119, the Accused may, with leave of court, file a Demurrer to Evidence after the Prosecution rests. PRAYER: Wherefore, Accused prays that this Motion for Leave be granted and that Accused be allowed to file a Demurrer to Evidence within the period the Honorable Court may set; and for such other relief as may be just. [Signature block; Notice; Service; Verification if required by local practice]

[Caption] DEMURRER TO EVIDENCE (Filed pursuant to leave granted on [date].) Introduction and Relief Sought. The People’s evidence, even viewed most favorably to the prosecution, fails to establish guilt beyond reasonable doubt for [offense]. Argument: I. Essential elements not proven (element-by-element chart). II. Inadmissibility of key exhibits/testimony (legal bases). III. Failure to prove identity (record citations). IV. Absence of qualifying circumstances (if charged). Prayer: Dismiss the Information and acquit the Accused. [Signature; Notice; Service]

10) Evidence-Mapping Toolkit (Quick Framework)

Elements Matrix: Rows = elements; Columns = “People’s proof cited” and “Defect.”
Admissibility Map: For each exhibit/testimony—offered for what purpose? foundation? objection? ruling?
Identity Ladder: Opportunity, consistency, reliability, absence of suggestiveness.
Jurisdiction/Venue Proof: Where did each element occur? Which court’s territorial reach?
Special Requisites: Statutory elements (e.g., chain-of-custody steps; public officer status and undue injury in graft; publication in libel).

11) Remedies and Post-Ruling Options

If granted (acquittal):
- Final, generally unappealable; prosecution may attempt Rule 65 certiorari alleging grave abuse of discretion (extraordinary; does not review mere errors of judgment).
- Bail: Typically cancelled; release orders issued.
If denied with leave:
- Proceed with defense evidence; you may renew legal insufficiency arguments in a motion for reconsideration post-trial and on appeal if convicted.
If denied without leave:
- Case submitted without defense evidence; consider post-judgment remedies if conviction occurs.

12) Practice Tips

Ask for leave early and clearly the same day the prosecution rests (or as the court schedules), and secure the order reflecting the resting and your motion.
Anchor every assertion to the record. Quote transcript lines and exhibit page cites.
Use narrow, dispositive grounds rather than scattershot arguments. Courts prefer a clean legal defect (e.g., “identity not proven as a matter of law”) over broad credibility attacks.
Preserve constitutional issues (search/seizure, custodial investigation, counsel, confessions).
Prepare a fallback plan: If leave is denied, be ready with defense witnesses and exhibits.

13) Quick Comparison Table

Aspect	Criminal Demurrer	Civil Demurrer
When available	After prosecution rests	After plaintiff rests
Leave needed?	Motion for leave is crucial; filing without leave is risky	No leave required
If denied	With leave: defense presents evidence; Without leave: defense waives evidence	Defendant proceeds to present evidence
If granted	Acquittal; generally final (double jeopardy)	Dismissal; if reversed on appeal, defendant may be deemed to have waived right to present evidence
Standard	Failure to establish prima facie case; beyond reasonable doubt not met even on prosecution’s version	Failure to establish right to relief on plaintiff’s version

14) Annotated Element-by-Element Outline (Criminal)

Statement of the Information (what exactly is charged; allege qualifying circumstances).
Elements and Burdens (define each statutory element).
Prosecution’s Proof Table (transcripts and exhibits against each element).
Admissibility Challenges (what falls out and why).
Legal Sufficiency Analysis (what remains cannot sustain conviction as a matter of law).
Identity Analysis (why identification is legally inadequate).
Relief (dismissal/acquittal).

15) Final Word

A Motion for Leave to File Demurrer to Evidence is one of the most consequential tactical moves in Philippine criminal litigation. When used properly—anchored on precise legal gaps and a meticulous record map—it can end the prosecution without the risks and costs of a full defense trial. Because missteps can waive the right to present evidence, the default best practice is to seek leave, present a targeted sufficiency argument, and keep your defense case ready if leave is denied.