Preliminary Investigation

Question 1

What is a Preliminary Investigation?

Answer 1

It 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, as amended by A.M. No. 05-8-26-SC]

Question 2

Does a preliminary investigation place the person against whom it is taken in jeopardy?

Answer 2

NO.

Preliminary Investigation is “merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits” and does not place the persons against whom it is taken in jeopardy [Paderanga v. Drilon, G.R. No. 96080 (1991)]

Question 3

Is a preliminary investigation a judicial function?

Answer 3

NO.
It is an executive, not a judicial function. Such investigation is not part of the trial, hence, a full and exhaustive presentation of the parties’ evidence is not required, but only such as may engender a wellgrounded belief that an offense has been committed and that the accused is probably guilty thereof [Metropolitan Bank and Trust Company v. Tonda, G.R. No. 134436 (2000)]

Question 4

Is the right to a preliminary investigation a fundamental right?

Answer 4

NO.
Right is statutory in character.

Neither the 1935 nor the 1973 Constitution requires the holding of a PI. The right thereto is of statutory character and may be invoked only when specifically created by statute. It is not a fundamental right and may be waived expressly or by silence [Marinas v. Siochi, G.R. Nos.. L-25707 (1981)]

Note: This doctrine is still applicable since the 1987 Constitution does not require a PI.

Question 5

Is the right to have a preliminary investigation conducted before being bound over to trial for criminal offense a mere formal of technical right?

Answer 5

NO. It is a substantive right.

The right to have a PI conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the accused’s claim to a PI would be to deprive him of the full measure of his right to due process [Sales v. Sandiganbayan, G.R. No. 143802 (2001)]

Question 6

Can the right to preliminary investigation be waived?

Answer 6

YES.

The right to PI is a personal right which the accused may waive either expressly or by implication but at all times must be unequivocal. Mere failure of a defendant and/or his counsel to appear during PI cannot be construed as a waiver [Larranaga v. CA, G.R. No. 130644 (1998)]

When the accused waives his right to PI, the fiscal may forthwith file the corresponding information with the proper court [People v. Perez, G.R. No. L15231 (1960)]

Question 7

Does an application for or admission to bail bar the accused from assailing the regularity or questioning of the absence of a preliminary investigation?

Answer 7

NO.

An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a PI of the charge against him provided that he raises the challenge before entering his plea [Sec. 26, Rule 114]

Question 8

Can the mere failure of a defendant and/or his counsel to appear during preliminary investigation be construed as a waiver to preliminary investigation?

Answer 8

NO.

All waiver at all times must be unequivocal. Mere failure of a defendant and/or his counsel to appear during PI cannot be construed as a waiver [Larranaga v. CA, G.R. No. 130644 (1998)]

The waiver, whether express or implied, must be in a clear and unequivocal manner [Larranaga v. CA. G.R. No. 130644 (1998)]

Question 9

When is the right to preliminary investigation deem waived?

Answer 9

a. Express waiver or by silence [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]
b. Failure to invoke it during arraignment [People v. De Asis, G.R. No. 105581 (1993)]; and
c. Consenting to be arraigned and entering a plea of not guilty without invoking the right to PI [People v. Bulosan, G.R. No. L-58404 (1988)]

Question 10

Can the right to preliminary investigation be raised for the first time on appeal?

Answer 10

NO.

The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]

Question 11

When is the right to preliminary investigation NOT deemed waived?

Answer 11

a. Failure to appear before the prosecutor during the clarificatory hearing or when summoned, when the right was invoked at the start of the proceeding [Larranaga v. CA, G.R. No. 130644 (1998)]; or
b. When the accused filed an application for bail and was arraigned over his objection and the accused demand that PI be conducted [Go v. CA, G.R. No. 101837 (1992)]

Question 12

What are the purposes of Preliminary Investigation?

Answer 12

a. To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty [Raro v. Sandiganbayan, G.R. No. 108431 (2000)]
b. To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials [Tandoc v. Resultan, G.R. No. 59241-44 (1989)]

Question 13

What is Probable Cause?

Answer 13

Probable cause means the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted [Allado v. Diokno, G.R. No. 113630 (1994)]

Question 14

What is the quantum of evidence required in preliminary investigation?

Answer 14

The quantum of evidence now required in PI is such evidence sufficient to “engender a well-founded belief” as to the fact of the commission of a crime and the respondent’s probable guilt thereof. A PI is not the occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof [Estrada v. Ombudsman, G.R. No. 212140 (2015)]

Question 15

Can a prosecutor be compelled by mandamus to file against an alleged criminal?

Answer 15

NO.

The determination of probable cause during a PI or reinvestigation is recognized as an executive function exclusively of the prosecutor. A prosecutor cannot then be compelled by mandamus to file a case against an alleged criminal.

The only exception is when such prosecutor acted with grave abuse of discretion amounting to grave abuse of discretion amounting to lack or excess of jurisdiction

[Hegerty v. CA, 409 SCRA 285 (2003)]

Question 16

Is Hearsay evidence admissible during PI?

Answer 16

YES.

Hearsay evidence is admissible during PI [De Lima v. Guerrero, G.R. No. 229781 (2017), citing Estrada v. Ombudsman, G.R. No. 212140 (2015)]

Question 17

In general, who may conduct the determination of existence of probable cause in a PI?

Answer 17

a. Provincial/city prosecutors and their assistants
b. National and regional state prosecutors
c. Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by A.M. No. 05-826-SC]
d. Ombudsman

Question 18

What is the difference between Judicial Determination v. Executive Determination of probable cause?

Answer 18

Executive Determination of Probable Cause - by prosecutor during preliminary investigation.

The executive determination of probable cause is one made during the PI. It is a function that properly pertains to the public prosecutor who is given a broad range of discretion to determine whether probable cause exists for purposes of indictment. Such finding will not be disturbed by the court unless there is finding of grave abuse of discretion [Mendoza v. People, G.R. No. 197293 (2014)]

Judicial Determination of Probable Cause

The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused [Sec. 2, Art. III, Constitution]

Question 19

Can RTC judges conduct preliminary investigation? Can MTC judges?

Answer 19

both NO.

Note: RTC judges have no power to conduct PI; and MTC judges cannot conduct PI anymore after A.M. No. 05-8-26-SC eliminated judges of the MTC and MCTC from those authorized to conduct a PI effective October 3, 2005.

Question 20

Can COMELEC conduct an investigation?

Answer 20

YES

The COMELEC may conduct investigation as regards election offenses [Sec. 2(6), Art. IX-C, Constitution; Sec. 265, Omnibus Election Code]

Question 21

In what cases is the Ombudsman authorized to conduct preliminary investigation?

Answer 21

The Ombudsman is authorized to conduct PI and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well [Uy v. Sandiganbayan, G.R. No. 105965-70 (2001)]

Question 22

When can courts interfere with the Ombudsman’s investigatory power?

Answer 22

When the finding is tainted with grave abuse of discretion amouting to lack or excess of jurisdiction.

Courts should not interfere with the Ombudsman’s investigatory power, exercised through the Special Prosecutor, except when the finding is tainted with GAD amounting to lack or excess of jurisdiction. On the other hand, if the Special Prosecutor files a motion to dismiss/motion for leave to file a motion to withdraw the information after reinvestigation, the resolution of such motion rests on the sound discretion of the anti-graft court [Fuentes v. Sandiganbayan, G.R. No. 164664 (2006)]

Question 23

What is the effect to the preliminary investigation when the accused (under pi by the Ombudsman) is not afforded his right to file a motion for reconsideration ?

Answer 23

PI rendered incomplete.

A person under PI by the Ombudsman is entitled to file a motion for reconsideration of the adverse resolution, under Sec. 7 of the Rules of Procedure of the Ombudsman. The filing of the information without first affording the accused his right to file a motion for reconsideration renders PI conducted in this case incomplete. The inevitable conclusion is that the accused was not only effectively denied the opportunity to file a motion for reconsideration of the Ombudsman’s final resolution but also deprived of his right to a full PI preparatory to the filing of the information against him [Sales v. Sandiganbayan, G.R. No. 143802 (2001)]

Question 24

What are the Steps in the Procedure for Preliminary Investigation?

Answer 24

a. Filing of complaint
b. Actoin of the investigationg officer
c. Respondent’s counter-affidavit
d. Clarificatory hearing
e. Determination

Question 25

During the preliminary investigation, does the prosecutor have a duty to provide the respondent with the counter-affidavits of his/her co-respondents?

Answer 25

NO.

During the conduct of PI, the prosecutor is under no duty to provide the respondent with the counter-affidavits of his/her co-respondents [Estrada v. Ombudsman, G.R. No. 212140-41 (2015)]

Question 26

[Procedure for Preliminary Investigation]

Requirements for the Filing of complaint?

Answer 26

a. States the respondent’s address
b. Includes the affidavits of the complainant and his witnesses, and other supporting documents to establish probable cause. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath or if absent or unavailable, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfiedthat they voluntarily executed and understood their affidavits.
c. Shall be in such number of copies as there are respondents, plus 2 copies for the official file

[Sec. 3(a), Rule 112, as amended by A.M. No. 05-826-SC]

Question 27

[Procedure for Preliminary Investigation]

Action of the investigating officer

Answer 27

a. Within 10 days after the filing of the complaint, the investigating officer will either:
1. Dismiss, if he finds no ground to continue the investigation; or

2. Issue a subpoena to the respondent, attaching the complaint and supporting affidavits and documents
   [Sec. 3(b), Rule 112, as amended by A.M. No. 05-826-SC]
3. If the respondent cannot be subpoenaed, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112, as amended by A.M. No. 05-826-SC]

Question 28

Does the respondent have a right to examine evidence submitted by the complainant (preliminary investigation)?

Answer 28

YES.

Respondent has the right to examine the evidence submitted by complainant which he may not have been furnished and to copy evidence at his expense [Sec. 3(b), Rule 112, as amended by A.M. No. 05-8-26-SC]

Question 29

[Procedure for Preliminary Investigation]

Requirements for Respondent’s Counter-Affidatvit

Answer 29

It must be made within 10 days from receipt of subpoena with the complaint, and must comply with the same requirements as a complaint. Respondent is not allowed to file a motion to dismiss in lieu of counter-affidavit [Sec. 3(c), Rule 112, as amended by A.M. No. 05-8-26-SC

If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Sec. 3(d), Rule 112, as amended by A.M. No. 05-8-26-SC] This situation would have the effect of an ex-parte investigation [Riano 210, 2016 Ed.]

Question 30

[Procedure for Preliminary Investigation]

Requirements for Clarificatory Hearing

Answer 30

The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned [Sec. 3(e), Rule 112, as amended by A.M. No. 05-8-26-SC]

The hearing shall be held within 10 days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days [Sec. 3(e), Rule 112, as amended by A.M. No. 05-8-26-SC]

Question 31

[Procedure for Preliminary Investigation]

Determination

Answer 31

Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial [Sec. 3(f), Rule 112, as amended by A.M. No. 05-8-26-SC]

Question 32

If the investigating Prosecutor finds probable cause to hold respondent for trial, he shall prepare the resolutio and information and shall certify under aoth in the information that:
_______ (enum)

Answer 32

certify under oath in the information that:

a. He, or as shown by the record, an authorized officer has personally examined the complainant and his witnesses;
b. There is reasonable ground to believe that a crime has been committed and the accused is probably guilty thereof;
c. The accused was informed of the complaint and of the evidence against him; and
d. He was given opportunity to submit controverting evidence

Question 33

What shall the investigating officer do if he finds no probable cause?

Answer 33

If he finds no probable cause, he shall recommend the dismissal of the complaint [Sec. 4, Rule 112, as amended by A.M. No. 05-8-26-SC]

Question 34

What is the next step after the resolution of the investigating prosecutor?

Answer 34

Review

Within 5 days from the resolution, the investigating officer shall forward the case to the provincial/city/chief state prosecutor, or to the Ombudsman or his deputy in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.

Question 35

Steps in the Review of the Resolution of the Investigating Officer (Preliminary Investigation)?

Answer 35

1. Within 5 days from the resolution, the investigating officer shall forward the case to the provincial/city/chief state prosecutor, or to the Ombudsman or his deputy in cases cognizable by the Sandiganbayan in the exercise of its original jurisdiction.
2. Within 10 days from receipt of the resolution, the Prosecutor/Ombudsman shall act on the resolution and shall immediately inform the parties of such action.
3. No complaint/information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial/city/chief state prosecutor, or Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but the prosecutor/Ombudsman or his deputy disapproves his recommendation, the latter may file the information by himself or direct another assistant/state prosecutor to do so without conducting a new PI.

4. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.

[Sec. 4, Rule 112, as amended by A.M. No. 05-8-26SC]

Question 36

Can a complaint/information be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial/city/chief state prosecutor, or Ombudsman or his deputy?

Answer 36

NO

[Sec. 4, Rule 112, as amended by A.M. No. 05-8-26SC]

Question 37

When can the prosecutor / Ombudsman or his deputy file the information by himself or direct another assistant/state prosecutor to do so without conducting a new PI?

Answer 37

Where the investigating prosecutor recommends the dismissal of the complaint but the prosecutor/Ombudsman or his deputy disapproves his recommendation, the latter may file the information by himself or direct another assistant/state prosecutor to do so without conducting a new PI.

[Sec. 4, Rule 112, as amended by A.M. No. 05-8-26SC]

Question 38

Can the Secretary of Justice review resolutions?

Answer 38

YES

The Secretary of Justice (SOJ) may review resolutions, via petition for review to the SOJ, of his subordinates in criminal cases despite the information being filed in court [Community Rural Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909 (2005); see also DOJ Circ. No. 70]

Question 39

Can a motion for reconsideration be filed against the SOJ’s resolution?

Answer 39

YES.

A motion for reconsideration may be filed against the SOJ’s resolution [DOJ Circ. No. 70 (2000)]

Question 40

How can the resolution of the Secretary of Justice be nullified?

Answer 40

The resolution of the Secretary of Justice may be nullified in a petition for certiorari under Rule 65 on grounds of grave abuse of discretion resulting to lack or excess of jurisdiction [Ching v. Sec. of Justice, G.R. No. 164317 (2006)]

Question 41

Is the resolution of the DOJ appealable administratively before the Office of the President?

Answer 41

YES.

The DOJ resolution is appealable administratively before the Office of the President and the decision of the latter may be appealed before the CA pursuant to Rule 43 [De Ocampo v. Sec. of Justice, G.R. No. 147932 (2006)]

Question 42

Can an appeal from or petition for review of decisions/orders/ resolutions of the Secretary of Justice on preliminary investigations shall be entertained by the Office of the President?

Answer 42

NO.

As provided under Memorandum Circular No. 58 (2003), no appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice on preliminary investigations shall be entertained by the Office of the President,

EXCEPT those involving offenses punishable by reclusion perpetua to death [Angeles v. Gaite, G.R. No. 176596 (2011)]

Thus, in De Ocampo involving homicide in relation to Sec. 10(a), Art. VI of R.A. 7610 punishable by reclusion perpetua, appeal to the OP was available. However, in Angeles involving libel, appeal to the OP was not allowed.

Question 43

Is the Court of Appeals clothed with jurisdiction to review the resolution issued by the Secretary of the DOJ?

Answer 43

YES.

The Court of Appeals is clothed with jurisdiction to review the resolution issued by the Secretary of the DOJ through a petition for certiorari under Rule 65 … solely on the ground that the Secretary of Justice committed grave abuse of his discretion amounting to excess or lack of jurisdiction [Argovan v. San Miguel Corporation, G.R. No. 188767 (2013)]

The CA has jurisdiction to review the resolution issued by the Secretary of Justice through a petition for certiorari under Rule 65 albeit solely on the ground that the Secretary committed grave abuse of his discretion amounting to excess or lack of jurisdiction. Petitioners could have easily availed themselves of such recourse instead of directly assailing the same before the SC [Chong v. Dela Cruz, G.R. No. 184948 (2009)]

Question 44

When can a Warrant of Arrest be issued by the RTC?

Answer 44

a. Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence
b. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.
c. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the PI or when the complaint or information was filed pursuant to Sec. 7 of Rule 112, as amended by A.M. No. 05-8-26-SC.
d. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5 days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint or information.

[Sec. 5(a), Rule 112, as amended by A.M. No. 05-8-26SC]

Question 45

When can a Warrant of Arrest be issued by the MTC?

Answer 45

The procedure for the issuance of a warrant of arrest by the judge shall be governed by Sec. 5(a) quoted above

[Sec. 5(b), Rule 112, as amended by A.M. No. 05-8-26-SC]

Question 46

When shall a warrant of arrest not issue?

Answer 46

A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in Section 5(b) quoted above, or if the complaint or information was filed pursuant to Sec. 6, Rule 112 (When accused lawfully arrested without warrant) or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction [Sec. 5(c), Rule 112, as amended by A.M. No. 05-8-26-SC]

Question 47

What is the nature of a preliminary investigation for the determination of a sufficient ground for filing of the informaition?

Answer 47

Executive in nature

The PI for the determination of a sufficient ground for the filing of the information is executive in nature. It is part of the prosecution’s job [P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642 (2002)]

Question 48

What is the purpose of the preliminary investigation conducted by the judge?

Answer 48

The PI conducted by the judge which is properly called preliminary examination is for the determination of probable cause for the issuance of warrant of arrest [P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642 (2002)]

Question 49

Does the absence of a preliminary investigation impair the validity of an information or render it defective?

Answer 49

NO.

The absence of a PI does not impair the validity of an information or render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information [Villaflor v. Vivar, G.R. No. 134744 (2001)]

Question 50

What are the remedies of the accused if there was no preliminary investigation?

Answer 50

a. Call the attention of the court to the deprivation of the required PI before entering his plea [Larranaga v. CA. G.R. No. 130644 (1998)]
b. File a certiorari, if refused and such refusal is tainted with grave abuse of discretion [Riano 186, 2016 Ed.]

The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a PI [Villaflor v. Vivar, G.R. No. 134744 (2001)]

After the filing of the complaint/information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112 [Sec. 6, Rule 112, as amended by A.M. No. 05-8-26-SC]

Question 51

Can the right to preliminary investigation be raise first time on appeal?

Answer 51

The right cannot be raised for the first time on appeal [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]

Question 52

What is the general rule re. restriction on the power of the fiscal to investigate crimes committed within hi jurisdiction?

Answer 52

General rule: The power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained.

Question 53

What is the exception to the rule that “the power of the Fiscal to investigate crimes committed within his jurisdiction will, ordinarily, not be restrained?

Answer 53

Exceptions: Extreme cases may exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary:

a. For the orderly administration of justice;
b. To prevent the use of the strong arm of the law in an oppressive and vindictive manner;
c. To avoid multiplicity of actions;
d. To afford adequate protection to constitutional rights [Hernandez v. Albano, G.R. No. L-19272 (1967)]
e. In proper cases, because the statute relied upon is unconstitutional, or was “held invalid” [Ladlad v. Velasco, G.R. No. 172070-72 (2007)]