RULE 112: PRELIMINARY
INVESTIGATION
1. What is Preliminary
Investigation (PI)?
Preliminary investigation is an inquiry
or proceeding to determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial. (Sec. 1, Rule 112)
2. What is the quantum of evidence
required for purposes of PI?
In the conduct of preliminary
investigation, the prosecutor does not decide whether there is evidence beyond
reasonable doubt of the guilt of respondent. A prosecutor merely determines the
existence of probable cause. Probable cause implies probability of guilt and
requires more than bare suspicion but less than evidence to justify a
conviction. Probable cause has been defined as the existence of such facts and
circumstances as would lead a person of ordinary caution and prudence to
entertain an honest and strong suspicion that the person charged is guilty of
the crime subject of the investigation. Probable cause is defined as such facts as are sufficient
to engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof and should be held for trial.
3. How to determine probable
cause?
A finding of probable cause needs only to
rest on evidence showing that more likely than not a crime has been committed
and was committed by the suspects. Probable cause need not be based on clear
and convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing absolute
certainty of guilt. (Webb v. De Leon)
The average person weighs facts and
circumstances without resorting to calibrations of the rules of evidence of
which he/she has no technical knowledge. Reliance on common sense. (Sarigumba v. Sandiganbayan)
4. What is the purpose of PI?
The purposes of a preliminary
investigation is to determine whether (a) a crime has been committed; and (b)
there’s probable cause to believe that the accused is guilty thereof.
The purpose of preliminary investigation is to secure the innocent
against hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of crime, from the trouble, expense and anxiety of a
public trial, and also to protect the state from useless and expensive trials.
5. Is double jeopardy applicable
in PI?
NO. There is no double jeopardy in
preliminary investigation. One of the requisites of double jeopardy is that the
case must have been validly terminated. Since PI is not even part of the trial
yet and res judicata has not yet set in, the case cannot be said to have been
validly terminated.
6. What are the natures of
Preliminary investigation?
a.
An executive function – PI is not a quasi-judicial
proceeding. Prosecution does not exercise adjudication nor rule-making
functions. It is the function of the National Prosecution Services, under the
direct supervision and control of the DOJ
b.
It is preliminary in nature – investigation
advisedly called a preliminary, yet to be followed by trial proper.
Investigating Officer acts upon probable cause and reasonable belief, not guilt
beyond reasonable doubt
c.
It is a summary and inquisitorial proceeding –
merely inquisitorial; not trial on the merits; right to preliminary
investigation is a personal right and can be waived expressly or by implication,
if failed to be invoked before entering plea; not part of the due process
(De Lima v. Reyes)
7. Is the nature of PI a right?
A preliminary investigation is merely
preparatory to a trial. It is not a trial on the merits. An accused’s right to
a preliminary investigation is merely statutory; it is not a right guaranteed
by the Constitution. Hence, any alleged irregularity in an investigation’s
conduct does not render the information void nor impair its validity. (De Lima v. Reyes) Substantive – not
merely formal or technical. To deny it petitioner would be deprived of full
measure of his/her due process
8. What is the coverage for PI?
A preliminary investigation is required
to be conducted before the filing of a complaint or information for an offense
where the law prescribes a penalty of at least four (4) years, two (2) months
and one (1) day without regard to the fine.
9. Who are the officers
authorized to conduct PI?
Officers authorized to conduct
preliminary investigations – The following may conduct preliminary
investigation:
(a)
Provincial or City Prosecutors and their
assistants;
(b)
Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;
(c)
National and Regional State Prosecutors; and
(d)
Other officers as may be authorized by law.
The authority to conduct preliminary
investigations shall include all crimes cognizable by the proper court in their
respective territorial jurisdictions. (Sec.
2, Rule 112)
10.
When does PI commence?
It is the filing of the complaint with the
investigating prosecutor that starts the preliminary investigation process. In
actual application, the complaint is normally initiated through an affidavit or
complaint
11. What are the contents of a complaint for purposes of PI, How many copies
should be prepared, its accompanying documents?
The complaint shall comply with the ff.:
(a)
The address of the respondent shall be indicated in
the complaint;
(b)
To establish probable cause, the complaint shall be
accompanied by:
(1)
The affidavit of the complainant;
(2)
The affidavits of the complainant’s witnesses
(3)
Other supporting documents
The appropriate number of copies of the
complaint and its accompanying documents shall be such number of copies as
there are respondents, plus 2copies for official file.
12.
After having obtained a complaint and its
accompanying documents, what could be the steps an Investigating Officer might
perform? When?
Within ten (10) days after the filing of the
complaint, the investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting
affidavits and documents. The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been furnished and to copy
them at his expense. If the evidence is voluminous, the complainant may be
required to specify those which he intends to present against the respondent,
and these shall be made available for examination or copying by the respondent
at his expense. Objects as evidence need not be furnished a party but shall be
made available for examination, copying, or photographing at the expense of the
requesting party
13.
In what manner should subpoenas be served?
Service of a subpoena shall be made in the
same manner as personal or substituted service of summons. The original shall
be exhibited and a copy thereof delivered to the person on whom it is served,
tendering to him the fees for one day's attendance and the kilometrage allowed
by these Rules, except that, when a subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or agency thereof, the tender need
not be made. The service must be made so as to allow the witness a reasonable
time for preparation and travel to the place of attendance. If the subpoena is
duces tecum, the reasonable cost of producing the books, documents or things
demanded shall also be tendered.
14. After having receipt of subpoena, what are the options left to the
respondent? When?
Within 10 days from receipt of the
subpoena with the complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his witnesses and
other supporting documents relied upon for his defense. (Sec. 3(c), Rule 112)
15.
Is motion for extension of time to file Counter
Affidavit allowed?
Yes, since the Rules of Court are to be
liberally construed, the respondent should be allowed through a proper motion
to have the proceedings reopened to allow him to submit his counter-affidavit
and the affidavits of his witnesses and other evidence he may present.The
motion, however, should be done before the prosecutor has issued a resolution
in the case. Further, such motion should contain an exclamation for the failure
to timely file the counter affidavit.
16. Is motion to dismiss allowed to be filed in lieu of affidavit?
NO. Par. (c), Sec. 3 of Rule 112 states
that respondent shall not be allowed to file a motion to dismiss in lieu of a
counter-affidavit.
17. What if respondent could not be subpoenaed, or does not submit his
counter affidavit?
If the respondent cannot be subpoenaed,
or if subpoenaed, does not submit counter-affidavits within the 10 day period,
the investigating office shall resolve the complaint based on the evidence
presented by the complainant. (Par. (d),
Sec. 3, Rule 112)
18. Is clarificatory hearing mandatory? What are the dos and donts during
clarificatory hearing?
A clarificatory hearing is not
indispensable during preliminary investigation. Rather than being mandatory, a
clarificatory is optional on the part of the investigating officer as evidenced
by the use of the term “may” in Section 3(e) of Rule 112. The term “may” is
generally permissive only and operates to confer discretion.
19.
Is right to counsel observed during PI?
No, the conduct of preliminary investigation
is a summary procedure and inquisitorial in nature. Moreover, the right to
counsel only begins when the accused is placed under custody of the law (i.e.
he is arrested, detained, or under custodial investigation) XCPT: When a
confession is to be obtained from the respondent, the presence of counsel is
required. Otherwise, the confession is void
20.
When is case deemed submitted for Resolution?
The Investigating Prosecutor shall case
submitted for resolution:
a) when the respondent cannot be subpoenaed
or, if subpoenaed, does not submit his counter-affidavit within the
reglementary period. In such a case, the Investigating Prosecutor shall base
his resolution on the evidence presented by the complainant; or
b) upon submission by the parties of their
respective affidavits and supporting proof or documents, in which event, he
shall, upon the evidence thus adduced, determine whether or not there is
sufficient ground to hold the respondent for trial
21.
What is the period to conduct PI?
Period to resolve cases under preliminary
investigation. - The following periods shall be observed in the resolution of
cases under preliminary investigation:
a) The preliminary investigation of complaints
charging a capital offense shall be terminated and resolved within ninety (90)
days from the date of assignment to the Investigating Prosecutor.
b)
The preliminary investigation of all other complaints involving crimes
cognizable by the Regional Trial Courts shall be terminated and resolved within
sixty (60) days from the date of assignment.
c)
In cases of complaints involving crimes cognizable by the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, the
preliminary investigation - should the same be warranted by the circumstances -
shall be terminated and resolved within sixty(60) days from the date of
assignment to the Investigating Prosecutor.
In all instances, the total period (from the
date of assignment to the time of actual resolution) that may be consumed in
the conduct of the formal preliminary investigation shall not exceed the
periods prescribed herein.
22.
Explain the confidentiality requirements for PI.
All resolutions prepared by an investigating
prosecutor after preliminary investigation, whether his recommendation be for
the filing or dismissal of the case, shall be held in strict confidence and
shall not be made known to the parties, their counsels and/or to any
unauthorized person until the same shall have been finally acted upon by the
Chief State/Regional State/Provincial/City Prosecutor or his duly authorized
assistant and approved for promulgation and release to the parties.
23.
What could be the possible courses of action of the
city/provincial/PROSGEN on the recommendatory resolution?
The Provincial or City Prosecutor or Chief
State Prosecutor concerned shall act on all resolutions within ten (10) days
from receipt thereof by either approving or disapproving the resolution or
returning the same to the investigating prosecutor for further appropriate
action.' 'immediately after approving or disapproving the resolution of the
Provincial or City Prosecutor or Chief State Prosecutor concerned shall
transmit a copy of the resolution to the parties
If the Provincial or City Prosecutor or Chief State Prosecutor reverses
the recommendation in the resolution of the investigating prosecutor, the
former may, by himself, file the corresponding information or direct any other
assistant prosecutor or state prosecutor, as the case may be, to do so without
need of conducting another preliminary investigation.
24.
What are the recourses of the complainant if case
is dismissed?
A motion for reconsideration may be filed
within ten (10) days from receipt of the resolution. The motion shall be
verified, addressed to the Provincial/City Prosecutor or the Chief State
Prosecutor, and accompanied by proof of service of a copy thereof on the
opposing party and must state clearly and distinctly the grounds relied upon in
support of the motion.
A motion for reconsideration is still part of
due process in the preliminary investigation. The denial thereof is a
reversible error as it constitutes a deprivation of the respondent's right to a
full preliminary investigation preparatory to the filing of the information
against him. The court therefore may not
proceed with the arraignment and trial pending resolution of the motion for
reconsideration.
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