SUBJECT: The Rule on ‘The Demurrer to Evidence’ (With vs Without Leave of Court)

I. Introduction

This memorandum provides an exhaustive analysis of the demurrer to evidence under Philippine remedial law, focusing on the critical distinction between filing it with leave of court and without leave of court. The demurrer to evidence is a remedy available to the accused in both criminal and civil cases, whereby the court is asked to dismiss the case on the ground of the insufficiency of the prosecution’s or plaintiff’s evidence. The choice between seeking or not seeking leave of court carries significant procedural consequences, primarily affecting the defendant’s right to present evidence if the demurrer is denied. This research will dissect the rule, its statutory basis, procedural requirements, and the legal effects of each mode of filing.

II. Definition and Nature of a Demurrer to Evidence

A demurrer to evidence is a motion to dismiss filed by the accused after the prosecution or the plaintiff has rested its case. It hypothetically admits the truth of the facts presented by the opposing party and argues that, even if taken as true, such evidence is insufficient to support a verdict in favor of said party. It is a test of the sufficiency of evidence. In criminal cases, it is governed by Rule 119, Section 23 of the Rules of Criminal Procedure. In civil cases, it is governed by Rule 33, Section 1 of the Rules of Civil Procedure. The filing of a demurrer is a critical stage of the proceedings, and the accused must be present, with the assistance of counsel, when it is resolved.

III. Statutory and Jurisprudential Basis

The primary rules are:
For criminal cases: Rule 119, Section 23 of the Rules of Criminal Procedure*.
For civil cases: Rule 33, Section 1 of the Rules of Civil Procedure*.
Jurisprudence has consistently emphasized that a demurrer to evidence is not a matter of right but is subject to the sound discretion of the court. The Supreme Court, in cases such as People v. Laguio, Jr., has clarified that the court must evaluate whether the prosecution’s evidence is prima facie sufficient to sustain a conviction, not whether it proves guilt beyond a reasonable doubt at that stage.

IV. Demurrer to Evidence With Leave of Court

Filing a demurrer to evidence with leave of court means the accused first secures the court’s permission to file the motion. The motion for leave of court must state the grounds for the demurrer. The court will grant leave if it finds the grounds to be meritorious. If the court denies the motion for leave, the accused is not barred from presenting evidence and the trial proceeds. If leave is granted and the accused files the demurrer, but the court subsequently denies the demurrer itself, the accused retains the right to present evidence on his or her behalf. This is the most significant procedural safeguard of filing with leave.

V. Demurrer to Evidence Without Leave of Court

Filing a demurrer to evidence without leave of court means the accused files the motion to dismiss outright, without first seeking the court’s permission. This is a riskier procedural move. If the court denies a demurrer filed without leave, the accused loses the right to present evidence. The court shall consider the accused to have waived the right to present evidence and shall render judgment based on the evidence presented by the prosecution. This consequence is explicitly stated in Rule 119, Section 23 for criminal cases and its counterpart in civil procedure.

VI. Grounds for Granting a Demurrer to Evidence

The sole ground for a demurrer to evidence is the insufficiency of evidence of the prosecution (in criminal cases) or the plaintiff (in civil cases). The court does not weigh the evidence but determines its sufficiency in form and substance. Insufficiency exists when the evidence fails to prove a prima facie case or fails to prove an essential element of the cause of action or the offense charged. For example, in a criminal case for theft, if the prosecution’s evidence utterly fails to establish the element of intent to gain (animus lucrandi), a demurrer may be granted.

VII. Comparative Analysis: With Leave vs. Without Leave

The following table summarizes the key distinctions:

Aspect	Demurrer With Leave of Court	Demurrer Without Leave of Court
Procedural Step	Requires a prior motion for leave of court stating the grounds.	Filed directly as a motion to dismiss.
Court’s Discretion	Court exercises discretion twice: on the leave and on the demurrer itself.	Court exercises discretion only on the demurrer.
Effect of Denial of Leave	Accused proceeds to present evidence. No adverse effect.	Not applicable.
Effect of Denial of Demurrer	Accused retains the right to present evidence.	Accused loses the right to present evidence; judgment may be rendered against them based on the opposing party’s evidence.
Risk Level	Lower risk; preserves the right to a full defense.	High risk; potentially waives the right to present evidence.
Strategic Use	Prudent when the insufficiency of evidence is arguable but not absolutely clear.	Used when the evidence is patently and clearly insufficient, making the grant of the demurrer highly probable.

VIII. Procedure for Filing and Resolution

When to File: After the prosecution/plaintiff rests its case.

For With Leave: File a motion for leave of court. If granted, file the demurrer to evidence within a non-extendible period of ten (10) days from notice of the order granting leave.

For Without Leave: File the demurrer to evidence directly.

Hearing: The court may hear the motion at its discretion or decide based on the pleadings.

Period to Resolve: The court has a non-extendible period of thirty (30) days from the time the motion is submitted for resolution to grant or deny it.

Order: The order resolving the demurrer must clearly state whether it is granted or denied.

IX. Effects of Granting or Denying the Demurrer

If Granted: The case is dismissed. In a criminal case, the accused is acquitted. The grant of a demurrer amounts to an acquittal and immediately becomes final and executory, placing the accused in jeopardy. It cannot be appealed by the prosecution except through a petition for certiorari under Rule 65 upon a clear showing of grave abuse of discretion* amounting to lack or excess of jurisdiction.
If Denied (With Leave): The trial continues, and the accused presents its evidence.
If Denied (Without Leave): The accused waives the right to present evidence. In a criminal case, the court is mandated to render judgment based on the evidence offered by the prosecution. The accused may then appeal the judgment, arguing both the denial of the demurrer* and the merits.

X. Conclusion and Recommendations

The demurrer to evidence is a potent but perilous procedural weapon. The distinction between filing with or without leave of court is fundamental and dictates the accused’s subsequent procedural rights. Filing with leave of court is the cautious and generally recommended approach, as it preserves the right to present a full defense if the court finds the demurrer unmeritorious. Filing without leave should only be reserved for cases where the insufficiency of the opposing party’s evidence is glaring and unequivocal, as an erroneous assessment results in the forfeiture of the right to present evidence. Counsel must exercise utmost diligence in evaluating the state of the evidence before electing which procedural path to take, as the consequence of a misstep is severe and often irrevocable.