1) What a Demurrer to Evidence Is (and Why It Matters)

A demurrer to evidence in a criminal case is a post-prosecution remedy where the accused asks the court to dismiss the case on the ground that the prosecution’s evidence is insufficient to prove guilt beyond reasonable doubt. In short: even assuming the prosecution’s evidence is taken at face value, it still does not establish all the required elements, or it is so defective (e.g., broken chain of custody) that conviction is not legally possible.

In Philippine criminal procedure, this remedy is governed by Rule 119, Section 23 of the Rules of Criminal Procedure.

Why it’s powerful:

If granted, it results in a dismissal that is effectively an acquittal, and double jeopardy generally bars further prosecution for the same offense.
If denied (and it was filed with leave of court), the accused typically still gets to present defense evidence.
If denied (and it was filed without leave), the accused generally waives the right to present evidence—often a case-ending mistake.

2) When You Can File: Timing and Prerequisites

You may file a demurrer only after:

The prosecution rests (formally declares it has finished presenting evidence), and
The case is submitted for the accused’s option to file a demurrer and/or present evidence.

Practically, this occurs after the prosecution has presented:

Testimony of arresting/buy-bust team, investigator, and sometimes the forensic chemist
Marking, inventory, and turnover narratives
Laboratory examination results and chemistry report
Exhibits (specimen, markings, request forms, chain-of-custody documents, etc.)

The court usually issues an order giving the defense a period to:

File a demurrer to evidence, or
Proceed to present evidence, or
File a motion for leave to file demurrer (common and safer).

3) The Two Routes: With Leave vs. Without Leave (Critical Distinction)

A) Demurrer WITH LEAVE of Court (recommended)

Step 1: File a Motion for Leave to File Demurrer to Evidence Step 2: If leave is granted, file the Demurrer to Evidence within the period stated by the court.

Effect if denied: The accused may still present evidence.

B) Demurrer WITHOUT LEAVE of Court (high risk)

You file the demurrer directly, without asking permission.

Effect if denied: The accused waives the right to present evidence and the case may be deemed submitted for judgment based only on prosecution evidence (plus any limited matters already on record).

Practical rule: In drug cases—where courts often scrutinize factual details—filing with leave is usually the safer procedural posture.

4) Legal Standard the Court Applies

The test is not whether the prosecution’s evidence appears believable, but whether it is legally sufficient to support a conviction—i.e., whether it proves each element of the offense beyond reasonable doubt and complies with rules on admissibility and integrity of evidence.

A demurrer argues that:

One or more essential elements are missing, or
The evidence is inadmissible, or
The evidence is unreliable as a matter of law (common in drug cases via chain-of-custody failures), or
The prosecution’s narrative is riddled with material inconsistencies that create reasonable doubt.

5) Drug-Case Context: What Usually Makes (or Breaks) the Prosecution

Philippine drug prosecutions frequently hinge on:

Identity of the accused (e.g., buy-bust identification; possession control)
Identity of the drug specimen (the same item seized must be the same item examined and presented in court)
Chain of custody compliance under Section 21 of RA 9165 (as amended by RA 10640) and its implementing rules

In many demurrers, the centerpiece is:

The prosecution failed to prove beyond reasonable doubt that the specimen presented in court is the same one allegedly seized from the accused.

6) Elements You Must Attack (Depending on the Charge)

A) Illegal Sale of Dangerous Drugs (RA 9165, Sec. 5)

The prosecution generally must prove:

Identity of the buyer and seller, the object (drug), and the consideration (payment)
Delivery of the drug and receipt of payment (or completion of sale transaction)
Presentation and identification of the drug in court as the same item sold
Compliance with chain of custody (or a legally acceptable justification plus preservation of integrity)

Demurrer angles:

No credible proof of the actual sale transaction (e.g., no clear delivery/receipt)
Unclear or contradictory testimony on the exchange
No credible linkage between seized item and laboratory specimen

B) Illegal Possession of Dangerous Drugs (RA 9165, Sec. 11)

The prosecution generally must prove:

Possession (actual or constructive)
Knowledge (animus possidendi)
The item possessed is a dangerous drug
Lack of authority
Chain of custody for the seized drug

Demurrer angles:

Accused had no control/possession (mere presence; planted evidence argument via doubt)
Search/arrest irregularities raising admissibility issues (depending on what’s already on record)
Chain-of-custody gaps create reasonable doubt on identity of corpus delicti

C) Possession of Drug Paraphernalia / Other RA 9165 Offenses

Elements vary, but identity of seized objects and legality of seizure can be crucial.

7) Chain of Custody: The Most Common Demurrer Battlefield

A) What Section 21 Compliance Is Trying to Protect

Section 21 procedures are meant to prevent:

switching, tampering, contamination, or planting
doubts about whether the specimen tested/presented is the one seized

Typical prosecution must account for:

Seizure and immediate handling
Marking (when, where, by whom)
Inventory and photographing (with required witnesses, as applicable)
Turnover to investigating officer
Turnover to forensic chemist / laboratory
Safekeeping and presentation in court

B) Common Section 21 Issues Used in Demurrers

A demurrer often highlights record-based failures such as:

Marking was not immediate, not at the place of arrest, or not clearly described
Missing or questionable inventory/photographs
Required witnesses not present (or not credibly explained), depending on the period and applicable rules
Gaps in turnover (who held the item, when, how sealed, where stored)
Inconsistent markings described by witnesses
Chemist testimony and documentary chain not tying neatly to seizure narrative
No proof that the specimen remained intact (lack of sealing, labeling, custody log)

C) “Substantial Compliance” and Justifiable Grounds

Courts sometimes accept non-literal compliance only if:

The prosecution acknowledges and explains the deviation with justifiable grounds, and
Shows the integrity and evidentiary value of the seized item were preserved.

A demurrer argues that:

The prosecution offered no specific, credible justification, or
The deviations created reasonable doubt about identity/integrity

8) Structure of the Filing: What to Prepare

Document Set (Typical)

Motion for Leave to File Demurrer to Evidence
Demurrer to Evidence (often treated as a motion to dismiss for insufficiency)
Memorandum (optional but common; sometimes integrated into the demurrer)
Proof of Service (showing the prosecutor received a copy)

Format Basics

Caption and title consistent with the criminal case number and RTC/MeTC branch
Clear prayer: dismissal/acquittal on ground of insufficiency
Notice of hearing if required by local practice/court directives
Verification is typically not required, but comply with the court’s orders and local rules

9) Step-by-Step Procedure (Practical Workflow)

Step 1: Confirm the prosecution has formally rested

Make sure the transcript/order reflects that the prosecution rests.

Step 2: Calendar the deadline

Courts usually give a fixed period (commonly a non-extendible period in some courts, or extendible upon motion depending on circumstances). Follow the court’s specific order.

Step 3: Decide “with leave” vs “without leave”

With leave is the safer default.
Without leave is usually reserved for rare situations where counsel knowingly accepts the waiver risk.

Step 4: Draft the Motion for Leave (short, focused)

This motion explains you intend to file a demurrer based on insufficiency and asks permission.

Step 5: Draft the Demurrer (substantive arguments)

Use headings tailored to the charge:

Failure to prove essential elements
Breaks in chain of custody / Section 21 noncompliance
Material inconsistencies undermining proof beyond reasonable doubt
Inadmissibility problems apparent on record (when applicable)

Step 6: File and serve

File with the court and serve the prosecutor within required periods/modes.

Step 7: Attend hearing (if set) / submit for resolution

Some courts resolve on the pleadings; others set hearings.

Step 8: If denied and you had leave—present defense evidence

If denied, the defense proceeds to present evidence within the period set.

10) How to Write the Demurrer: Effective Argument Blueprint

A) Start with the governing rule and standard

State Rule 119, Sec. 23 and the test: whether prosecution evidence is sufficient for conviction beyond reasonable doubt.

B) Identify the charge and its elements

List the elements (Sale vs Possession).

C) Map evidence-to-element and show what’s missing

A strong demurrer doesn’t just complain; it demonstrates:

Element X requires Y
The prosecution offered no competent proof of Y, or proof is fatally compromised

D) Prioritize “record-anchored” defects

Demurrers are strongest when they rely on:

prosecution witness admissions
contradictions between prosecution witnesses
missing documents/exhibits
unclear custody transitions

E) Chain of custody: narrate the gaps like a timeline

Courts absorb a clear, chronological custody-gap narrative better than scattered objections.

11) Sample Outline (Template-Style)

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT Branch __, City of __ People of the Philippines, Plaintiff, -versus- Accused, Criminal Case No. __

MOTION FOR LEAVE TO FILE DEMURRER TO EVIDENCE

Prosecution has rested on (date).
Accused respectfully seeks leave under Rule 119, Sec. 23 to file a demurrer on ground of insufficiency.
The prosecution evidence fails to establish guilt beyond reasonable doubt, particularly on:
- essential elements of the offense; and/or
- identity of the corpus delicti due to chain-of-custody defects. PRAYER: grant leave; allow filing within __ days.

(If leave granted) DEMURRER TO EVIDENCE

I. Governing Rule and Standard II. Elements of the Offense III. Prosecution Evidence Fails to Prove Essential Elements

(Element-by-element analysis) IV. Identity of the Drug Not Proven Beyond Reasonable Doubt
marking/inventory/witness issues
turnover gaps
inconsistencies in markings or handling
absence of credible justification for deviations V. Reasonable Doubt Compels Dismissal PRAYER: dismiss the case/acquit the accused for insufficiency of evidence.

(Include proof of service.)

12) Strategic Considerations in Drug Cases

A) When a demurrer is especially strong

Prosecution witnesses contradict each other on who marked, when marked, where marked
Inventory/photo and witness requirements appear unfulfilled with no credible explanation
Custody transfers are vague (“I gave it to someone” without time, place, sealing details)
The forensic chain (request, receipt, lab exam, storage) doesn’t match the seizure narrative
The “sale” mechanics are unclear (no clear delivery, no clear consideration link)

B) When filing without leave is especially dangerous

If there is any chance the court may say “there’s enough to convict,” you may lose your chance to present defense evidence.
Drug cases often turn on factual appreciation; even with weaknesses, some courts deny demurrers and require defense evidence to tip the balance.

C) Demurrer vs. defense evidence

Sometimes the best path is:

File demurrer with leave; if denied, present defense evidence targeted to:
- alternative narrative (non-possession / frame-up)
- credibility and motive
- physical impossibility / inconsistencies
- constitutional issues that are already preserved on record where applicable

13) Effects of a Granted Demurrer (and Limits on Review)

If the court grants the demurrer:

The case is dismissed for insufficiency—functionally an acquittal
Double jeopardy generally attaches; the prosecution typically cannot appeal to revive the case
The prosecution’s remedy is usually limited to an extraordinary petition (e.g., alleging grave abuse of discretion), not a regular appeal on the merits

14) Common Pitfalls to Avoid

Filing demurrer without leave and getting denied → waiver of defense evidence
Missing the filing deadline set by the court
Using generic arguments without tying them to the prosecution’s actual record
Overarguing illegal arrest/search issues that were not timely raised (depends on what’s already on record and the procedural posture)
Ignoring the elements and focusing only on credibility—courts want element-based insufficiency analysis

15) Practical Checklist Before Filing

Confirm prosecution has rested and exhibits are identified/admitted as applicable
Identify the exact charge (Sec. 5 sale vs Sec. 11 possession; quantity/penalty bracket where relevant)
List elements and map prosecution evidence to each element
Write a chain-of-custody timeline: seizure → marking → inventory/photo → investigator → lab → court
Mark contradictions and missing links using transcript references/record details
Decide: with leave (recommended)
Serve prosecutor and attach proof of service
Prepare for fallback: if denied (with leave), be ready to present defense evidence promptly

16) Key Takeaway

A demurrer to evidence in a Philippine drug case is a precision tool: it succeeds when it demonstrates, using the prosecution’s own record, that an essential element is unproven or that the identity and integrity of the drug evidence are in reasonable doubt—most often through chain-of-custody defects under Section 21 of RA 9165 (as amended)—making conviction legally unsustainable.