Options After Filing a Demurrer to Evidence in Philippine Criminal Cases

1. Legal Basis and Nature of a Demurrer

Rule/Provision	Key Points
Rule 119, § 23, Rules of Criminal Procedure	After the prosecution rests, the court may dismiss the action “on the ground of insufficiency of evidence” either (a) motu proprio or (b) upon a demurrer to evidence filed by the accused with or without leave of court.
Effect	A demurrer is the criminal‑procedure counterpart of a motion for directed verdict; it asserts that the prosecution’s evidence, even if taken as true, fails to prove guilt beyond reasonable doubt.

Practical implication: Filing is always a tactical gamble. The accused may attack the prosecution’s case early—but risks waiving the right to present defense evidence if the demurrer is without leave and later denied.

2. Timing and Procedural Mechanics

When filed – Only after the prosecution formally rests.
Form – Written motion, stating the specific insufficiencies of the evidence.
Leave of court – Must be sought before filing, unless the accused wants to proceed without leave and accept the attendant waiver risk.
Comment period – Prosecution is ordinarily given five (5) days to oppose; the court resolves the motion within 30 days (Rule 15 applies suppletorily).

3. Court’s Possible Rulings and Their Immediate Effects

Scenario	If Demurrer GRANTED	If Demurrer DENIED
*Filed with* leave**	• Accused is ACQUITTED → judgment immediately final; double‑jeopardy attaches. • Accused released and bond cancelled. • Prosecution’s sole recourse: Rule 65 certiorari (grave abuse of discretion, People v. Sandiganbayan line of cases).	• Accused may still present evidence (no waiver). • Defense begins; normal trial proceeds. • Accused may reconsider denial or petition for certiorari (interlocutory order).
*Filed without* leave**	Same effects as above.	• Waiver of right to present evidence; case is submitted for decision on the prosecution’s evidence alone (People v. Go, People v. Januario). • Accused may still move to reopen under Rule 119 § 24 “in the higher interest of justice,” but this is discretionary and rarely granted.

4. Post‑Ruling Options in Detail

A. After a Grant (Acquittal)

Accused
- Free from further prosecution on the same offense (Art. III § 21, 1987 Const.).
- May seek damages under Art. 29, Civil Code if prosecution was malicious.
- Cannot be retried except when the judgment is void for lack of jurisdiction or rendered with grave abuse—remedied only via certiorari which, even if granted, merely voids the acquittal and remands; it cannot substitute a conviction.
Prosecution
- File a motion for reconsideration before judgment becomes final (rarely granted; may violate double jeopardy).
- Rule 65 petition—allowed in exceptional cases (e.g., People v. SB, G.R. No. 232197, 10 Apr 2019), but limited to correcting jurisdictional errors.
Court
- May not reconsider motu proprio once judgment becomes final; doing so violates double jeopardy.

B. After a Denial (With Leave)

Accused
- Present defense evidence—witnesses, documents, alibi, etc.
- Reconsideration—a motion for reconsideration of the denial is not pro forma, but filing it pauses presentation of evidence.
- Petition for certiorari—if the denial is claimed to be issued with grave abuse (usually denied; interlocutory orders are rarely disturbed).
- Strategic choice—accused may decline to present evidence even though allowed, effectively resting; but counsel must weigh risks.
Prosecution
- Proceeds to cross‑examine defense witnesses.
- May impeach or rebut.

C. After a Denial (Without Leave)

Waiver is automatic—defense rests by operation of law.
Case submitted for decision → court drafts judgment based solely on prosecution evidence.
Limited remedies—accused may:
1. Request reopening under § 24 (“to prevent a miscarriage of justice”)—requires notice to the prosecutor and hearing.
2. Challenge conviction on appeal; issues are confined to sufficiency of prosecution proof because defense adduced none.

Practice tip: Most lawyers file with leave unless prosecution’s case is obviously fatally weak.

5. Ancillary and Collateral Matters

Effect on Bail – If already on bail, it remains while demurrer is pending; once acquitted, bail is exonerated.
Multiple Accused – Each may choose independently; a grant in favor of one does not automatically benefit co‑accused (People v. Hilario).
Partial Demurrer – Accused may target specific counts; proceedings continue on the others.
Plea Bargaining – Still possible before judgment becomes final; denial of demurrer doesn’t foreclose a later plea to a lesser offense if the prosecution and court agree.
Judge‑Initiated Dismissal – Under Rule 119 § 23 (a) the court may, sua sponte, dismiss for insufficiency. The same double‑jeopardy consequences attach as if a demurrer had been granted.

6. Key Jurisprudence to Remember

Case	Doctrine / Holding
People v. Go, G.R. No. 194338 (01 Feb 2012)	Denial of a without‑leave demurrer waives right to present evidence.
People v. Sandiganbayan (Yap case), G.R. No. 140470 (16 Sep 2003)	Acquittal via demurrer generally unappealable, but certiorari lies for grave abuse.
People v. SB, G.R. No. 232197 (10 Apr 2019)	Clarified stringent standards for reviewing acquittals by certiorari.
Jimenez v. People, G.R. No. 211293 (05 Jan 2016)	Section 23 applies even to special penal laws; insufficiency measured against elements of the offense.
People v. Januario, G.R. No. 233888 (03 Mar 2021)	Reiterated waiver rule and cautioned trial courts to explain consequences to the accused.

7. Strategic Considerations for Defense Counsel

Assess strength of prosecution’s case—identifying fatal variances, missing elements, or incompetent evidence.
Consider alternative motions—motion for bail (if capital offense), motion to suppress, etc., which may weaken the State’s evidence ahead of a demurrer.
Document waiver warnings—ensure the accused personally understands the consequences of a without‑leave filing to forestall later claims of denial of due process.
Prepare fallback evidence—even when filing with leave, be ready to present defense proof immediately if denial is swift (to avoid delay objections under the Speedy Trial Act).

8. Comparison With Related Remedies

Remedy	When Available	Relief Sought	Waiver Risk
Demurrer to Evidence	After prosecution rests	Acquittal for insufficiency	Yes (if without leave)
Motion to Dismiss (Rule 117)	Before plea (or some grounds any time)	Dismissal on jurisdiction, etc.	No
Motion for Directed Verdict (civil)	After plaintiff rests	Dismissal for insufficiency	N/A – civil setting

9. Conclusion

A demurrer to evidence is a powerful but double‑edged procedural tool. Once filed, the menu of options that follows depends on two variables: (1) the presence or absence of leave and (2) the court’s ruling. Understanding every fork in that path—from immediate waiver consequences to the limited appellate remedies—enables counsel to deploy the demurrer strategically, protect the client’s constitutional rights, and avoid self‑inflicted procedural traps.

Bottom line: File with leave unless absolutely certain the prosecution’s evidence is fatally deficient. If the demurrer is granted, celebrate an acquittal; if denied, be ready to mount a full defense.