RULE 112: Preliminary Investigation

 




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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