RULE 112 Flashcards
PRELIMINARY INVESTIGATION
Preliminary investigation is an inquiry or proceeding to determine whether there exist a sufficient ground 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
NATURE OF PRELIMINARY INVESTIGATION
Merely inquisitorial and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the prosecutor to prepare his complaint or information
OFFENSES REQUIRING PRELIMINARY INVESTIGATION
GR: preliminary investigation is required before the filing of a complaint or information or information for an offenses where the penalty prescribed by aw is atleast 6 years and 1 day.
EXCEPTION :OFFENSES REQUIRING PRELIMINARY INVESTIGATION
No right of preliminary investigation under rule 112, section6, when a person is lawfully arrested without a warrant however, the person arrested shall be subject to inquest proceedings
Instances when preliminary investigation may be demanded by the accused who is under inquest:
- if a person is arrested, he can ask for preliminary investigation before the filing of the complaint or information but he must sign a waiver in accordance with Art 125 of the RPC
- after the filing of the information/complaint, the accused may, within 5 days from the time he learns of its filing ask for preliminary
PURPOSE OF PRELIMINARY INVESTIGATION
- for the investigating prosecutor to determine if a crime has been committed
- to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial
- 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, expenses and anxiety of a public trial
- to protect the state from having to conduct useless and expensive trials
Preliminary Investigation: A personal statutory right
the right to preliminary investigation is a personal right covered by the statute and may be waived expressly or by implication. it is not merely procedural but a substantive right included in the due process of law
Instances when right to preliminary investigation is waived
- failure to claim it before the accused pleaded
- his silence
- failure to request it within 5 days from the time he learns of the filing of the complaint or information, in those instances where the accused is lawfully arrested without a warrant
RIGHT TO PRELIMINARY INVESTIGATION IS NOT WAIVED
- failure to appear before the prosecutor during the clarificatory hearing or when summoned when the right was invoked at the start of proceeding
- when the accused filed an application for bail and was arraigned over his objection and the accused demand that preliminary investigation be conducted
EFFECT OF ABSENCE OF PRELIMINARY INVESTIGATION
The absence of a preliminary investigation does not impair the validity of the information or otherwise render the same defective. it does not affect the jurisdiction of the court over the case or constitute a ground for quashing the information
REMEDIES OF THE ACCUSED WHEN NO PRELIMINARY INVESTIGATION IS CONDUCTED
- refuse to enter a plea upon arraignment and object to further proceedings upon such ground
- insist on a preliminary investigation
3.file a certiorari, if refused - raise lack of preliminary investigation as error on appeal
- file for prohibition
PRELIMINARY INVESTIGATION VS PRELIMINARY EXAMINATION
- AS TO PURPOSE
- AS TO WHOM MAY CONDUCT
3.AS TO NATURE
PERSONS AUTHROIZED TO CONDUCT A PRELIMINARY INVESTIFATION
- PROVINCIAL OR CITY PROSECUTORS AND THEIR ASSISTANTS
- REGIONAL AND NATIONAL STATE PROSECUTORS
- SUCH OTHER OFFENSES AS MAY BE AUTHORIZED BY LAW SUCH AS THE COMELEC, OMBUDSMAN AND PCGG
