Irlanda

Nature of preliminary investigation; purpose (Bar 1985; 1986; 1991; 1998;

2004)

1. Sec. 1 of Rule 112 provides:

" x x x Preliminary investigation is an inquiry or a proceeding the purpose of which is 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 x x x"

2. The definition lucidly declares that a preliminary investigation is a mere inquiry or a proceeding. It is not therefore, a trial and so does not involve the examination of witnesses by way of direct or cross-examinations. Its purpose is not to declare the respondent guilty beyond reasonable doubt but only to determine first, whether or not a crime has been committed and second, whether or not the respondent is "probably guilty" of the crime. The question to be answered in a preliminary investigation is not: "Is the respondent guilty or is he innocent?" More accurately, the question sought to be answered is: "Is the respondent probably guilty and therefore, should go to trial?"

As jurisprudence puts it: "Preliminary investigation 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-founded belief that an offense has been committed and that the accused is probably guilty thereof. The validity and merits of a party's accusation or defense, as well as admissibility of testimonies and evidence,

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are better ventilated during the trial proper" (Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R. No. 135703, April 15,2009).

3. 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, and to file the corresponding information if he finds it to be so (De Chavez v.

Ombudsman, G.R. No. 168830-31, February 6, 2007). Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence to justify a conviction (Manebo v. Acosta, G.R. No. 169554, October 28,2009).

4. Stated otherwise, the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and 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 (Spouses Balanguan v. Court of Appeals, G.R. No. 174350, August 13, 2008;

The Presidential AD-Hoc Fact- Finding Committee on Behest Loans [FFCBL] v.

Desierto, G.R. No. 136225, April 23,2008).

For instance, whether the facsimile message is admissible in evidence and whether the element of deceit in the crime of estafa is present are matters best ventilated in a full-blown trial, not during the preliminary investigation. A preliminary investigation is not the occasion for the full and exhaustive display of the prosecution's evidence. The presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a fullblown trial on the merits. In fine, the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated during

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the trial proper than at the preliminary investigation level (Samuel Lee, et al. v.

KBC Bank N.V. [Formerly Kredietbanky N.V.I G.R. NO. 164673, January 15,2010).

5. The purposes of a preliminary investigation is to determine whether (a) a crime has been committed; and (b) there is probable cause to believe that the accused is guilty thereof (Manebo v. Acosta, G.R. No. 169554, October 28,2009).

However, the ultimate 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, expenses and anxiety of a public trial, and also to protect the State from useless and expensive prosecutions" (Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001; Albay Accredited Constructions Association, Inc. v.

Desierto, G.R. No. 133517, January 30 2006, 480 SCRA 520). It is designed to free a respondent from the inconvenience, expense, ignominy and stress of defending himselfTherself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less summary proceeding by a competent officer designated by law for that purpose (Ledesma v. Court of Appeals, 278 SCRA 656).

Nature of the right to a preliminary investigation

1. The holding of a preliminary investigation is not required by the Constitution. It is not a fundamental right and is not among those rights guaranteed in the Bill of Rights. The right thereto is of a statutory character and may be invoked only when specifically created by statute (Marinas v. Siochi, 104 SCRA 423). But while the right is statutory rather than constitutional, since it has been established by statute, it becomes a component of due process in criminal justice (Doromal v. Sandiganbayan, 177 SCRA 354; Duterte v.

Sandiganbayan, 289 SCRA 721; Ong v. Sandiganbayan, 470 SCRA 7).

When so granted by statute, the right is not a mere formal or technical right. It is a substantive right. To deny

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the claim of the accused to a preliminary investigation would be to deprive him the full measure of his right to due process (Duterte v. Sandiganbayan, 289 SCRA 721).

2. There exist decisions holding that a preliminary investigation is essentially a judicial inquiry and that in a preliminary investigation, the prosecutor or investigating officer acts as a quasi-judicial officer. Although a preliminary investigation is, according to the Court, not a trial, and is not intended to usurp the function of a trial court, it is not a casual affair but is, in effect a realistic judicial appraisal of the merits of the case. These cases also ruled that the authority of a prosecutor or an investigating officer to conduct a preliminary investigation is no less than that of a municipal judge or even a regional trial court judge and that while the investigating officer is not a

"judge," by the nature of his functions, he is and must be considered to be a quasi-judicial officer. A preliminary investigation has been called a judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when there is an opportunity to be heard and for the production of and weighing of evidence, and a decision is rendered thereon (Cruz v. People, 233 SCRA 439;

Sales v. Sandiganbayan, G.R. No. 143802, November 16,2001).

It is worth remarking that the concept of a preliminary investigation as essentially a judicial inquiry as declared in the 1994 case of Cruz v. People was adopted by the Department of Justice. The DOJ Manual for Prosecutors citing Cruz describes a preliminary investigation as "essentially a judicial inquiry since there is the opportunity to be heard, the production and weighing of evidence, and a decision rendered on the basis of such evidence. In this sense, the investigating prosecutor is a quasi-judicial officer" (See Sec. 1, Part III, Manual for Prosecutors).

3. Under a different set of facts and issues, a pronouncement was later made in Bautista v. Court of Appeals, G.R. No. 143375, July 6, 2001, where it was held that a preliminary investigation is "very different from other"

quasi-judicial proceedings. Accordingly, the prosecutor in a preliminary in

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vestigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and 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.

While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal. Bautista further holds that the Office of the Prosecutor is not a quasi-judicial body. Necessarily, its decisions approving the filing of a criminal complaint are not appealable to the Court of Appeals under Rule 43 as are the decisions of quasi-judicial bodies enumerated therein.

Bautista however, concedes that there are cases which held that a prosecutor conducting a preliminary investigation performs a quasi-judicial function and that the power to conduct preliminary investigation is quasi-judicial in nature. Bautista clarified that this statement holds true only in the sense thatr like quasi-judicial bodies, the prosecutor is an office in the executive department exercising powers akin to those of a court. But here is where the similarity ends. A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings.

4. A similar pronouncement was made a few years later, in Santos v. Go, G.R. No. 156081, October 19,2005. This case held that a public prosecutor does not perform acts of a quasi-judicial body. The Court described a quasi-judicial body as an organ of government other than a court and other than a legislature which performs adjudicatory functions. Said body affects the rights of private parties either through adjudication or rule-making. Its awards, when performing adjudicatory functions, determine the rights of the parties and their decisions have the same effect as judgments of a

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court. Such is not the case, according to the Court, when a public prosecutor conducts a preliminary investigation.

The main issue for resolution in Santos v. Go was whether a petition for review under Rule 43 is a proper mode of appeal from a resolution of the Secretary of Justice directing the prosecutor to file an information in a criminal case. In the course of this determination, the Court had to consider whether the conduct of preliminary investigation by the prosecutor is a quasi-judicial function. Note that Rule 43 is the mode of appeal from the awards, judgments, final orders or resolutions of the quasi-judicial agencies enumerated in said Rule in the exercise of their quasi-judicial functions.

The Court observed that Rule 43 of the 1997 Rules of Civil Procedure clearly shows that it governs appeals to the Court of Appeals from decisions and final orders or resolutions of quasi-judicial agencies in the exercise of their quasi-judicial functions. The Department of Justice is not among the agencies enumerated in Section 1 of Rule 43. Thus, inclusio unius est exclusio alterius.

Reiterating its ruling in Bautista v. Court of Appeals, the Court proceeded to declare that it cannot agree with petitioners' submission that a preliminary investigation is a quasi-judicial proceeding, and that the DOJ is a quasi-judicial agency exercising a quasi-judicial function when it reviews the findings of a public prosecutor regarding the presence of probable cause. Since the DOJ is not a quasi-judicial body and it is not one of those agencies whose decisions, orders or resolutions are appealable to the Court of Appeals under Rule 43, the resolution of the Secretary of Justice finding probable cause to indict petitioners is, therefore, not appealable to the Court of Appeals via a petition for review under Rule 43.

5. Also, a much later case affirmed previous rulings that a preliminary investigation is not a quasi-judicial proceeding, and that the DOJ is not a quasi-judicial agency exercising a quasi-judicial function when it reviews the findings of a public prosecutor regarding the presence of probable cause (Spouses Balanguan v. Court of Appeals, G.R. No. 174350, August 13, 2008).

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One of the issues that was sought to be resolved in Spouses Balanguan was whether or not the DOJ is covered by the constitutional injunction embodied in Sec. 14, Article VIII of the Constitution. This provision requires that

"No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based."

Also, drawing heavily from the earlier case of Bautista v. Court of Appeals, G.R. No. 143375, July 6, 2001, the more recent case of Spouses Balanguan stressed that a preliminary investigation 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. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal. Though some cases, added the Court, describe the prosecutor's power to conduct a preliminary investigation as quasi-judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is an officer of the executive department exercising powers akin to those of the court, and the similarity ends at this point. A quasi-judicial body is an organ of government other than a court and other than a legislature which affects the rights of private parties, and their decisions have the same effect as judgments of a court. Such is not the case when a public prosecutor conducts a preliminary investigation to determine probable cause to file an information against a person charged with a criminal offense, or when the Secretary of Justice is reviewing the former's order or resolution. The Court concluded that since the DOJ is not a quasi-judicial body, Sec. 14, Article VIII of the Constitution finds no application.

6. An earlier pronouncement was more clear and direct.:

"xxx A preliminary investigation proper — whether or not there is reasonable ground to believe that the accused is guilty of the offense and therefore, whether or not he should be subjected to the expense, rigors and

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embarrassment of trial is the function of the prosecutor.

Preliminary investigation is an executive, not a judicial function. Such investigation is not part of the trial xxx" (Metropolitan Bank and Trust Company v. Tonda,

338 SCRA 254).

Right to a preliminary investigation; waivable

The right to a preliminary investigation may be waived for failure to invoke the right prior to or at the time of the plea (People v. Gomez, 117 SCRA 73; People v. Bulusan, 160 SCRA 492; Go v. Court of Appeals, 206 SCRA 138).

Preliminary investigation vs. preliminary examination (preliminary inquiry) 1. A preliminary investigation is conducted by the prosecutor to ascertain whether the alleged offender should be held for trial, to be subjected to the expense, rigors and embarrassment of trial or if the offender is to be released. A preliminary inquiry or a preliminary examination is conducted by the judge to determine probable cause for the issuance of a warrant of arrest.

This is a judicial function (People v. Inting, 187 SCRA 788; AAA v. Carbonnel, 524 SCR 496).

2. Preliminary investigation is executive in nature. It is part of the prosecutor's job. Preliminary examination is judicial in nature and is lodged with the judge. Sound policy supports this distinction. Otherwise judges would be unduly laden with the preliminary investigation and examination of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts (Ledesma v. Court of Appeals, 278 SCRA 656; Co v. Republic, 539 SCRA 147).

Probable cause in preliminary investigation

1. 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. Being based merely on

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opinion and reasonable belief, it does not import absolute certainty. Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence to justify a conviction (Manebo v. Acosta, G.R. No. 169554, October 28, 2009). Probable cause, for purposes of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondents are probably guilty thereof. The determination of its existence lies within the discretion of the prosecuting officers after conducting a preliminary investigation upon complaint of an offended party. Probable cause is meant such set of facts and circumstances which would lead a reasonably discrete and prudent man to believe that the offense charged in the information, or any offense included therein, has been committed by the person sought to be arrested (Manebo v.

Acosta, G.R. No. 169554, October 28, 2009; Roberto B. Kalalo v. Office of the Ombudsman, G.R. No. 158189, April 23,2010).

2. Probable cause need not be based on evidence establishing absolute certainty of guilt. While probable cause demands more than "bare suspicion," it requires "less than evidence which would justify conviction." A finding of probable cause merely binds over the suspects to stand trial. It is not a pronouncement of guilt (De Chavez v. Ombudsman, G.R. Nos. 168830-31, February 6,2007; Spouses Balangauan v. Court of Appeals, G.R. No. 174350, August 13,2008; Manebo v. Acosta, G.R. No. 169554, October 28, 2009).

3. Probable cause implies only probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction. A finding of probable cause needs only to rest on evidence showing that more likely than not, a crime has been committed by the suspect. It does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. The complainant need not present at this stage proof beyond reasonable doubt. A preliminary investigation does not require

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a full and exhaustive presentation of the parties' evidence. It is enough that in the absence of a clear showing of arbitrariness, credence is given to the finding and determination of probable cause by the Secretary of Justice in a preliminary investigation (Ricaforte v. Jurado, G.R. No. 154438, September 5,2007).

4. "The term probable cause 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 commission complained of constitutes the offense charged.... In order that probable cause to file a criminal case may be arrived at, or in order to engender the well-founded belief that a crime has been committed, the elements of the crime charged should be present. This is based on the principle that every crime is defined by its elements, without which there should be — at the most — no criminal offense (Sy Thiong Shiou v. Sy Chim, G.R. No. 174168, March 30, 2009). Probable cause does not also mean that guilt must be established beyond reasonable doubt and definitely not on evidence establishing absolute certainty of guilt (Heirs of Jose Sy Bang v. Sy, G.R. No. 114217, October 13,2009).

For instance, the test in a malicious prosecution case should be whether sufficient facts exist which show that, in bringing the criminal action, complainant acted with probable cause, defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind that the person charged and prosecuted in a criminal case is probably guilty of the

For instance, the test in a malicious prosecution case should be whether sufficient facts exist which show that, in bringing the criminal action, complainant acted with probable cause, defined as the existence of such facts and circumstances as would excite the belief in a reasonable mind that the person charged and prosecuted in a criminal case is probably guilty of the