RULE 112 - PRELIMINARY INVESTIGATION
Section 1. Preliminary investigation defined; when required. – 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.
Except as provided in Section 7 of this Rule, a preliminary investigation is required
to be conducted before the filing of a compliant 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.
WHAT IS A PRELIMINARY INVESTIGATION?
> 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
WHAT IS THE NATURE AND EFFECTS OF A PRELIMINARY INVESTIGATION?
1. It is merely inquisitorial
2. Only means of discovering whether the offense has been committed and the
persons responsible for it
3. To enable the fiscal to prepare his complaint and information
4. Not a trial on the merits
5. Determine whether there is probable cause to believe that an offense has been
committed and the accused is probably guilty of it
6. Doesn't place the accused in jeopardy
7. Doesn't affect the jurisdiction of the court—only the regularity of the proceedings
8. Accused cannot assert lack of preliminary investigation. Court cannot dismiss the case
based on this ground—it should conduct the investigation or order the fiscal or lower court to do
it
9. Preliminary investigation may be waived
10. Accused should invoke right to PI before plea, otherwise it is deemed waived
11. Accused doesn't have full gamut of rights yet. He doesn't have right to counsel unless
a confession is being obtained from him.
12. There is also no right to confront witnesses against him.
WHEN IS IT REQUIRED?
> Before a complaint or information is filed, preliminary investigation is
required for all offenses punishable by imprisonment of at least 4 years, 2 months and 1
day, regardless of the fine, except if the accused was arrested by virtue of a lawful arrest without
warrant
> In case of lawful arrest without warrant: the complaint or information may be filed
without a preliminary investigation unless the accused asks for a preliminary investigation
and waives his rights under Article 125 of the RPC
> Whether or not there is a need for PI depends upon the imposable penalty for the crime
charged in the complaint filed with the city or provincial prosecutor’s office and not upon
the imposable penalty for the crime fund to have been committed by the respondent after a
preliminary investigation
WHAT IS THE PURPOSE OF A PRELIMINARY
INVESTIGATION?
1. To determine if 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
2. To protect the accused from the inconvenience, expense, and burden of
defending himself in a formal trial unless the reasonable probability of his guilt has
been first ascertained in a fairly summary proceeding by a competent officer
3. 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
4. To protect the state from having to conduct useless and expensive trials
WHAT IS THE SCOPE OF PRELIMINARY
INVESTIGATION?
> Preliminary investigation is merely inquisitorial and it is often the only means of
discovering whether the offense has been committed and the persons
responsible for it to enable the fiscal
to prepare his complaint or information
> It is not a trial on the merits and has no purpose BUT to determine whether
there is probable cause to believe that an offense has been committed and that
the accused is probably
guilty of it
> It doesn't place the accused in double jeopardy
IS THE RIGHT TO PRELIMINARY INVESTIGATION
A FUNDAMENTAL RIGHT?
> No, it is a statutory right
> May be waived expressly or by silence
> It is not an element of due process unless it is expressly granted by
law
> While the right to a PI may be substantial, nevertheless it is not a
constitutional right
CAN THE ACCUSED DEMAND THE RIGHT TO CONFRONT
AND CROSS-EXAMINE HIS WITNESSES DURING THE
PRELIMINARY INVESTIGATION?
> No, the preliminary investigation is not part of the trial
> It is summary and inquisitorial in nature
> Its function is not to determine the guilt of the accused but merely to determine the
existence of probable cause
IS THE LACK OF A PRELIMINARY INVESTIGATION
A GROUND FOR DISMISSING A COMPLAINT?
> No, the absence of a Preliminary Investigation doesn't affect the jurisdiction of the
court but merely the regularity of the proceedings
> Neither is it a ground to quash the information or nullify the order of arrest issued
against him or justify the release of the accused from detention
> The court cannot dismiss the complaint on this ground, and it should instead
conduct the investigation or order the fiscal or lower court to do it considering
that the inquest investigation conducted by the state prosecutor is null and void
> The trial court should suspend proceedings and order a Preliminary Investigation
where the inquest conducted is null and void
WHAT IS THE EFFECT OF THE ABSENCE OF
CERTIFICATION THAT PRELIMINARY INVESTIGATION
WAS CONDUCTED?
> It is of no consequence
> The important thing is that there was actually an investigation and that the accused
was informed thereof and was allowed to present controverting evidence
RIGHT TO PRELIMINARY INVESTIGATION
WHEN SHOULD THE RIGHT TO PRELIMINARY
INVESTIGATION BE INVOKED?
> The accused should invoke it before plea, or else, it is deemed waived
IF THE COURT DENIES THE INVOCATION OF THE
RIGHT TO PRELIMINARY INVESTIGATION, WHAT IS
THE REMEDY OF THE ACCUSED?
> He must immediately appeal it to the appellate court
> He cannot raise later the issue for the first time on appeal
IF THE COMPLAINT OR INFORMATION IS AMENDED,
SHOULD A NEW PRELIMINARY INVESTIGATION BE
CONDUCTED?
> No, unless the amended complaint or information charges a NEW offense
CONDUCT OF PRELIMINARY INVESTIGATIONS
Sec. 2. 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.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions.
WHO MAY CONDUCT PRELIMINARY INVESTIGATIONS?
1. Provincial or city prosecutors and their assistants
2. National and Regional State prosecutors
3. COMELEC with respect to election offenses
4. Ombudsman with respect to Sandiganbayan offenses and other offenses
committed by public officers
5. PCGG with respect to ill-gotten wealth
CAN RTC JUDGES CONDUCT PRELIMINARY
INVESTIGATIONS?
> No, but this should not be confused with the authority of the RTC to conduct an
examination for the purpose of determining probable cause when issuing a warrant
of arrest
Procedure in Conducting Preliminary
Investigation
The preliminary investigation shall be conducted in
the following manner:
(a) 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.
(b) 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.
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to
specify those which he intends to present against the respondent, and these
shall be made available for examination or copying by the respondent at his
expense.
Objects as evidence need not be furnished a party but shall be made available
for examination, copying, or photographing at the expense of the requesting party.
(c) 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 as
provided in paragraph (a) of this section, with copies thereof furnished by him to
the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu
of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating office shall resolve
the complaint based on the evidence presented by the complainant.
(e) 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.
The hearing shall be held within ten (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.
(f) 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.
WHAT IS THE PROCEDURE IN CONDUCTING A
PRELIMINARY INVESTIGATION?
> The preliminary investigation shall be conducted in the following manner:
1. 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.
> The affidavits must be subscribed and sworn before the prosecutor or
government official
authorized to administer such or notary public
2. 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.
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense. If
the evidence is voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these shall be made
available for examination or copying by the respondent at his expense.
3. 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. The
respondent shall not be allowed to file a motion to dismiss in lieu of a
counter-affidavit.
4. If the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) day period,
the investigating office shall resolve the complaint based on the
evidence presented by the complainant.
5. 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. The hearing shall be held within ten (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.
6. 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.
IS A PRELIMINARY INVESTIGATION A JUDICIAL
PROCEEDING?
> Yes it is a judicial proceeding where the prosecutor or investigating officer
acts a quasi-judicial officer
> Parties are given the opportunity to be heard and to produce evidence which
shall be weighed and upon which a decision shall be rendered
> Since it is a judicial proceeding, the requirement of due process in judicial
proceedings is also required in preliminary investigations
DUE PROCESS
WHAT IS DUE PROCESS?
> The idea that laws and legal proceedings must be fair
> Principle that the government must respect all of a person's legal rights instead of just some or most of
those legal rights when the government deprives a person of life, liberty, or property
WHAT ARE THE TWO BRANCHES OF DUE PROCESS?
> Due process covers two aspects—substantive and procedural due process
> Substantive due process refers to the intrinsic validity of the law
> Procedural due process, which is based on the principle that a renders judgment only after
trial and based on the evidence presented therein
DIFFERENCE BETWEEN CRIMINAL
INVESTIGATION AND PRELIMINARY
INVESTIGATION
> Criminal investigation is a fact-finding investigation carried out by law-enforcement
officers for the purpose of determining whether they should file a complaint for
preliminary investigation
> Preliminary investigation is conducted for the purpose of determining if there is a
probable cause to hold a person for trial
WHAT IS PROBABLE CAUSE?
> Probable cause 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
> Based on the evidence that would be adduced by the parties
IS THE PRESENCE OF COUNSEL IN A
PRELIMINARY INVESTIGATION MANDATORY?
> No, preliminary investigation is a summary proceeding and is merely inquisitorial
in nature
> The accused cannot yet fully exercised his rights
> However, if a confession is to be obtained from respondent, an uncounselled
confession would be void
RIGHTS AND LIMITATIONS IN A PRELIMINARY
INVESTIGATION
1. You cannot cross-examine
2. No right to counsel except when confession is being obtained
3. You cannot file complaint or information without authority
4. Right to be present not absolute
5. No dismissal without approval
6. Right to discovery proceedings
HOW DOES THE INVESTIGATING PROSECUTOR
RESOLVE THE FINDINGS AFTER PRELIMINARY
INVESTIGATION?
> The investigating prosecutor shall do the following:
1. 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:
a. He, or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses;
b. That there is reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof;
c. That the accused was informed of the complaint and of the evidence submitted against him;
d. And that he was given an opportunity to submit controverting evidence.
2. If the investigating officer finds no probable
cause, he shall recommend the dismissal of the complaint
3. 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.
4. 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.
5. If 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, either:
a. By himself, file the information against the respondent,
b. Direct another assistant prosecutor or state prosecutor to do so without
conducting another preliminary investigation.
6. If upon petition by a proper party under such
rules as the Department of Justice may prescribe or
motu propio, 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 anther reliminary
investigation, or to dismiss or move for dismissal of the
complaint or information with notice to the parties.
NO PRELIMINARY INVESTIGATION CONDUCTED,
REMEDIES
IF THERE WAS NO PRELIMINARY INVESTIGATION
CONDUCTED, WHAT IS THE REMEDY OF THE ACCUSED?
*Code: RICA P
1. Refuse to enter plea
2. Insist on a preliminary investigation
3. File certiorari if refused
4. Raise it as an error on appeal
5. File a petition for prohibition
CONDUCT OF PRELIMINARY INVESTIGATIONS
Sec. 2. 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.
Their authority to conduct preliminary investigations shall include all crimes cognizable by the
proper court in their respective territorial jurisdictions.
WHO MAY CONDUCT PRELIMINARY INVESTIGATIONS?
1. Provincial or city prosecutors and their assistants
2. National and Regional State prosecutors
3. COMELEC with respect to election offenses
4. Ombudsman with respect to Sandiganbayan offenses and other offenses committed by public
officers
5. PCGG with respect to ill-gotten wealth
CAN RTC JUDGES CONDUCT PRELIMINARY
INVESTIGATIONS?
> No, but this should not be confused with the authority of the RTC to conduct an examination for the
purpose of determining probable cause when issuing a warrant of arrest
