Preliminary Investigation Flashcards
What is a preliminary investigation?
A 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 probable guilty thereof, and should be held for trial.
When is a preliminary investigation required? What is its exception?
A preliminary investigation is required before a complaint or information will be filed for crimes punishable with at least 4 years, 2 months, and 1 day regardless of the fine.
The exception to this, is that a preliminary investigation is not required to be held if the accused is lawfully arrested without a warrant involving an offense which requires preliminary investigation, provided that an inquest has been conducted.
Who may conduct preliminary investigations? Is it an executive function or judicial function?
Provincial, City, Regional, and National Prosecutors, the Ombudsman with regards to cases against public officials, and the COMELEC with regards to election cases.
It is an executive function, the correctness of the exercise of which is not a matter that the trial court does not and may not be compelled to pass upon. The public prosecutor has broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law.
How is a preliminary investigation done? First step.
A complaint is filed before the investigating officer. The complaint must include the address of the respondent, the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. The affidavits must be subscribed and sworn to before any prosecutor, or government official authorized to administer oath, or a notary public.
How is a preliminary investigation done? Second step.
10 days after the filling of the complaint, the investigating officer may dismiss the complaint if he finds no grounds to continue the investigation. If he does, he will issue a subpoena to the respondent, attaching the complaint, the affidavits, and the supporting documents.
How is a preliminary investigation done? Third step, subpoena.
If the respondent receives the subpoena, within 10 days from the receipt thereof, the respondent will submit his and his witnesses counter-affidavits, as well as other supporting documents for his defense. The counter-affidavits must be subscribed and sworn to before any prosecutor, or government official authorized to administer oath, or a notary public.
If the respondent cannot be subpoenaed or does not reply to the subpoena, the investigating officer will resolve the complaint base on the evidence presented by the complainant.
How is a preliminary investigation done? Fourth step.
After receiving the counter-affidavits of the respondent, the investigating officer may set a hearing if there are facts and issues that needs to be clarified from a party or witness. The parties can be at the hearing but without the right to examine or cross-examine. They can submit questions to be asked to the party or witness concerned, but its up to the discretion of the investigating officer.
Within 10 days after the investigation, the investigating officer shall determine whether or not there is a sufficient ground to hold the respondent for trial.
How is a preliminary investigation done? Fifth step.
If the investigating officer finds cause to hold the respondent for trial, he shall prepare a resolution and information.
He shall certify under oath in the information that:
(a) He is an authorized officer,
(b) He have personally examined the complainant and the witnesses,
(c) He have found probable cause that a crime has been committed, and that the respondent is probably guilty thereof
(d) The respondent was informed of the complaint and the evidence submitted against him, and
(c) The respondent was given the chance to submit controverting evidence.
How is a preliminary investigation done? Sixth step.
Within 5 days of the resolution, the investigating officer must forward the record of the case to the provincial, city, or chief state prosecutor, or the Ombudsman. They shall act on the resolution within 10 days from the receipt thereof.
What is the purpose of a preliminary investigation.
Is it a trial of the case on its merits?
Preliminary investigation is generally inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information.
It is not a trial of the case on the merits, and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof.
What is the effect of the absence of preliminary investigation?
The absence of preliminary investigation does not affect the court’s jurisdiction over the case, nor impair the validity of the information or otherwise render it defective.
In cases like this, the courts should hold in abeyance the proceedings, and order the investigating officer to conduct a preliminary investigation.
Who has the final authority in the filing of an information?
Under Section 4, Rule 112 of the Rules of Court, no complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor.
What is the effect of not holding a preliminary investigation with regards to an information amended with a similar offense?
If the amended information charges the same offense as that under the original information, or if the original one is related to the amended one, such that an inquiry would elicit substantially the same facts, a new preliminary investigation is not needed.
What specifically is the probable cause to be determined by the prosecutor during the preliminary investigation?
Probable cause to be determined the prosecutor is merely the well-engendered belief that a crime has been committed and that the accused is probably guilty thereof. It only merely binds over the suspect for trial, and not a pronouncement of guilt.
What if the information is filed by a person who is not authorized to do so?
If an information is filed by an officer who has no authority to do so, the respondent may filed a motion to quash the information. This is because an invalid information is no information at all, and cannot be the basis for a criminal proceeding.
