PRELIMINARY INVESTIGATION IN CRIMINAL CASES

By: Atty.Fred | September 17, 2007 in Criminal Law, Litigation

At the outset, lets remove any possibility of misunderstanding that may be caused by the title of this
post. The reference to a preliminary investigation in criminal cases does not imply that theres a
preliminary investigation in civil cases theres none. Preliminary investigation is a part of the rules
of criminal procedure. Simply stated, its available ONLY in criminal cases.
What is Preliminary Investigation?
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.
What is the Nature and Purpose of preliminary investigation?
The determination of probable cause during a preliminary investigation is an executive function, the
correctness of the exercise of which is a matter that the trial court itself does not and may not be
compelled to pass upon.
In a preliminary investigation, the investigating prosecutor makes a determination if theres a
probable cause, which is 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. It has been explained as a reasonable
presumption that a matter is, or may be, well founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so. The term does not mean actual and positive cause
nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a
finding of probable cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained of constitutes
the offense charged, as there is a trial for the reception of evidence of the prosecution in support of
the charge.
The purpose of a preliminary investigation is 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 and anxiety of a public trial, and also to protect the state from useless and
expensive trials. A preliminary investigation serves not only the purposes of the State. More
important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in

our country. It is therefore, imperative upon the fiscal or the judge as the case may be, to relieve the
accused from the pain of going through a trial once it is ascertained that the evidence is insufficient
to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt
of the accused. The judge or fiscal, therefore, should not go on with the prosecution in the hope that
some credible evidence might later turn up during trial for this would be in flagrant violation of a basic
right which the courts are created to uphold. (Salonga vs. Cruz Pao)
When is preliminary investigation required?
A preliminary investigation is required to be conducted before the filing of a complaint or information
for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one
(1) day, without regard to the fine.
A preliminary investigation is not required in cases of warrantless arrests. When a person is lawfully
arrested without a warrant involving an offense which requires a preliminary investigation, the
complaint or information may be filed by a prosecutor without need of such investigation provided an
inquest has been conducted in accordance with existing rules. However, after the filing of the
complaint or information in court without a preliminary investigation, the accused may, within five (5)
days from the time he learns of its filing, ask for a preliminary investigation.
Who are the officers authorized to conduct preliminary investigations?
The following may conduct preliminary investigations:
(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.
What are the basic steps in preliminary investigation?
The basic steps (further discussed in the subsequent paragraphs) in preliminary investigation are:
1.
Filing
of
the
Complaint-Affidavit.
2. Issuance of subpoena by the investigating prosecutor to the respondent.
3.
Filing
of
Counter-Affidavit
by
the
respondent.
4. If allowed by the prosecutor, filing of Reply-Affidavit (by the complainant) and Rejoinder-Affidavit
(by
the
respondent).
5. Resolution.
What are the requirements in filing the Complaint-Affidavit?

The complaint shall state the address of the respondent and shall be accompanied by the affidavits
of the complainant and his witnesses, as well as other supporting documents to establish probable
cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to before any prosecutor or government
official authorized to administer oath, or, in their absence or unavailability, before a notary public,
each of whom must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
The complaint is also generally required to pay filing fees.
What actions are taken by the investigating prosecutor after the complaint is raffled to
him/her?
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.
I havent encountered any case where the investigating prosecutor dismissed the case prior to the
issuance of the subpoena. Moreover, in practice, the complaint and the annexes are not usually
attached to the subpoena, but are provided to the respondent during the initial stage.
How is the Counter-Affidavit submitted by the respondent?
Within ten (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. The counter-affidavits shall be subscribed and
sworn to and certified before the investigating prosecutor (which means that the respondent must
generally be present during the submission of the counter-affidavit), with copies furnished to the
complainant. The respondent is not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
Can the investigating prosecutor resolve the complaint if the respondent does not appear?
Yes. If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits,
the investigating office shall resolve the complaint based on the evidence presented by the
complainant. 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.
This is the reason why, even in cases where a preliminary investigation is required, its entrely
possible that a warrant of arrest may be isued without the respondent/accused being informed about

or having participated in a preliminary investigation. So, dont disregard a subpoena in a preliminary

investigation.
How is the resolution prepared?
If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the complainant and his witnesses; that there
is reasonable ground to believe that a crime has been committed and that the accused is probably
guilty thereof; that the accused was informed of the complaint and of the evidence submitted against
him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of
such action.
Can the Information be filed without the written authority of the proper authorities?
No complaint or information may be filed or dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct another assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.
An Information filed in court may be quashed, among other reasons, if it does not contain the
approval or authority of the aforementioned superiors.
What is the procedure if the preliminary investigation is conducted by a judge?
The procedure is basically the same as described above. Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit the resolution of the case to the provincial or city

prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the

Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall
state the findings of facts and the law supporting his action, together with the record of the case
which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counteraffidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and
the order for his release; (d) the transcripts of the proceedings during the preliminary investigation;
and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the
Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge
on the existence of probable cause. Their ruling shall expressly and clearly state the facts and the
law on which it is based and the parties shall be furnished with copies thereof. They shall order the
release of an accused who is detained if no probable cause is found against him.

http://jlp-law.com/blog/preliminary-investigation-criminal-cases/

GOT [PROBABLE] CAUSE?

By: jlp | July 21, 2006 in Criminal Law, Litigation
(This entry was posted by Judge Don Navarro at his site (Got Cause?) and reproduced here with
his

express

permission.)

One motion quickly gaining favour among lawyers after the 2000 Rules of Criminal Procedurecame
into effect is the Motion for Determination of Probable Cause to hold the accused for trial.
The 2000 Rules made it clear that every person is entitled to a determination by a JUDGE that there
exists cause to charge him with a crime before giving due course to any information (the document
that charges the accused with a crime). Previously, judges relied largely on the determination of
probable cause by the Public Prosecutor (District Attorney to those of you from the United States of
A) even though the Philippine Supreme Court had already expressly declared the right to be of a
constitutional nature.
Believing that this imposed an additional burden on the poor, overworked and underpaid judges, I
took up my beef with former Court Administrator (later Commission on Elections Chairman and

subsequently Solicitor General) Alfredo Benipayo who patiently explained that the right could not be
denied any accused under the constitution.
Well, once the word constitutional is mentioned, any further argument is negated, so I shut
up and went to work determining probable cause in every information that came my way.
The determination of probable cause must be made by the Judge before he issues a warrant of
arrest (based on the records transmitted to the Court from the prosecutor) or any other process that
might bring the accused into the custody of the Court. If the Judge is not satisfied with the
prosecutors findings, he may either require the prosecutor to submit additional evidence or
dismiss the case outright. This, even before a warrant is issued.
This is why I take issue with the Motion for Determination of Probable Cause.
Since a judge already has the burden of making the determination BEFORE he issues the Warrant
of Arrest, the Motion has a dubious place in procedure. The issuance of the warrant carries with it
the presumption that the judge had already made a determination that probable cause exists to bring
the accused to trial. Giving due course to such a motion would be an express admission that the
judge had been negligent in performing his duties and open him up to administrative sanction.
Of course, this should not stop lawyers from filing such a motion should the record of the prosecutor
(the record of preliminary investigation) be so wanting in (competent) evidence to establish probable
cause. In such cases, though, the judge may once again be open to sanction. This, however, should
be the exception, rather than the rule.

http://jlp-law.com/blog/got-probable-cause/

THEORY OF RELATIVITY

By: jlp | July 23, 2006 in Criminal Law, Litigation

(This is written by Judge Don Navarro, reproduced here with his express permission.)
I recently had the opportunity to ask Justice Hilarion Aquino about remedies available to an offended
party where the information had been dismissed outright for lack of probable cause (see Got
Cause?).

A hot topic of discussion among judges that they couldnt resolve by themselves was whether or
not the offended party could still prosecute the civil claim.
In the Philippines, unlike some jurisdictions, the offended party is entitled to prosecute his claim for
his personal injury in the criminal action. What the judges cant seem to agree on, is whether or
not, upon a finding that there is no probable cause to prosecute the accused for the criminal case,
the civil claim may proceed in the criminal case.
On one hand, some judges say yes. They say it is only just that an offended party should be allowed
to pursue his claim so that he may avoid having to go through the inconvenience of filing a separate
suit, and thus avoid a multiplicity of suits.
Some of us, including this writer, say no.
Thus, the question I laid at Justice Aquinos feet. His answer?
YES! And let me tell you why! Judges in concurrence with me gasped at this apparent loss
in the battle of opinions. Those who still dont bother to determine probable cause were simply left
behind. To prosecute a civil claim successfully, one only needs a preponderance of evidence. To
ensure that a criminal case is given due course in Court, one needs probable cause, a level of
evidence higher than mere preponderance. Thus, as relative to preponderance, probable cause is a
higher standard of evidence, the civil claim may be prosecuted.
Im sure that would have ended all debate before most fora. Except, the good justice ended his
answer with, That is my THEORY.
With all due respect to the good justice, please allow us in the negative to continue to disagree.
The chief point of contention for the contumacious is the fact that the civil liability sought to be
prosecuted in a criminal action is that which arises from the criminal act itself. This is very different
from the liability that arises from a valid cause of action in a civil case, personal injury included. The
only valid conclusion that can be derived from the premises, therefore, I SUBMIT, is that the civil
claim can no longer be pursued once a judge dismisses a case outright for lack of probable cause
for when the Judge does so, he states at the earliest instance, that there is no cause to believe a
crime has occurred, and so the basis of civil liability is absent.
This is vastly different from when an offended party has already presented evidence and the Court,
having found no criminal liability, awards the civil claim anyway. In this instance, evidence has

already been presented, and the inconvenience for the offended party should he have to file a
separate civil claim is manifest, for he would have to prove once again what he had already proven in
the criminal action, an unnecessary multiplicity of suits. Note that the civil liability awarded is not
based on any criminal act. The Court has simply found that based on the evidence presented, the
accused is civilly liable to the offended party for some reason other than a crime.
When the case has been dismissed for lack of probable cause, however, the Court makes an
express statement that there is no civil liability, as there is no probable cause to believe that the
criminal act that gives rise to the civil liability, has occured.
Which is why the better remedy for the offended party in the latter instance is to file a separate civil
suit.

OWNERSHIP OF PHILIPPINE LAND BY FOREIGNERS

By: Atty.Fred | June 11, 2009 in Corporate and Investments, Family Law
Aliens, as a general rule, are not allowed to own real property in the Philippines. By aliens, we dont
mean creatures from outer space, but persons who are citizens of other countries. By general rule,
we mean that there are certain exceptions, and two of such exceptions are discussed below.
The prohibition on foreigners owning Philippine lands is embodied in no less than the
Philippine Constitution. This, in fact, is one of the usual reason cited by those who want to revise or
amend the Constitution. The Constitution provides:

Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or hold lands of the public domain.
(Article XII, Section 7)
Its clear from this provision that private land may be transferred only to persons or entitles
who/which has the capacity to acquire or hold lands of the public domain. Those who are qualified
to acquire or hold lands of the public domain are as follows:
1. Filipino citizens.
2. Corporations at least 60% of the capital of which is owned by Filipinos.
In other words, the Constitution explicitly prohibits non-Filipinos from acquiring or holding title to
private lands. Among the exceptions are as follows: (1) transfer to an alien by way of legal
succession; or (2) if the acquisition was made by a former natural-born citizen. The 1987
Constitution provides that:
Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines
who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations
provided by law. (Art. XII, Sec. 8)
The Supreme Court reiterated this general rule in a recent case (Borromeo vs. Descallar, G.R. No.
159310, 24 February 2009). The Court also reiterated the consistent ruling that if land is invalidly
transferred to an alien who subsequently becomes a Filipino citizen or transfers it to a Filipino, the
flaw in the original transaction is considered cured and the title of the transferee is rendered valid.
There are other exceptions to the prohibition on aliens owning real property in the Philippines, like full
ownership by foreigners of condominium units, but this shall be the subject of future discussions.
For this article, lets have this discussion should foreigners be allowed to own land in the
Philippines? Comments below.