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Is the presence of counsel in a preliminary investigation mandatory? WHAT IS THE QUANTUM OF EVIDENCE REQUIRED DURING PRELIMINARY INVESTIGATION?

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Category 1

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 exercise his rights.

WHAT IS THE QUANTUM OF EVIDENCE REQUIRED DURING PRELIMINARY INVESTIGATION?

Answer: Prima facie evidence with reasonable certainty of conviction.

Will the failure to accord the right to preliminary investigation result in the dismissal of the information?

No. The failure to accord this right does not ipso facto result in the dismissal of the information; the case is merely suspended, and the prosecutor directed to conduct the proper investigation. (Alvarez Yusop vs. Sandiganbayan, G.R. No. 138859-60, February 22, 2001)

When is the right to preliminary investigation deemed waived?

The right to preliminary investigation is deemed waived by failure to invoke the right prior to or at least at the time of plea.

Is the right to preliminary investigation a fundamental right?

No, it is a statutory right and is not a right guaranteed by the Constitution. The right to a preliminary investigation is personal. It is afforded to the accused by statute, and can be waived, either expressly or by implication. It is not part of the due process guaranteed by Constitution. (Benedicto Rivera vs. CA, GR 12539, Sept. 4, 2001)

Category 2

When can the investigating prosecutor set the case for clarificatory hearing?

Within 5 days from the submission of the counter-affidavit/s and other documents.

IF A RESPONDENT CANNOT BE SUBPOENAED, OR IF SUBPOENAED, DOES NOT SUBMIT A COUNTER-AFFIDAVIT, WHAT MUST THE INVESTIGATING PROSECUTOR DO?

Answer: Consider the case submitted for resolution (DC No. 15, Sec. 10 e) Resolve the case based on the evidence presented by the complainant.

WHEN IS PRELIMINARY INVESTIGATION REQUIRED?

Before a complaint or information is filed, preliminary investigation is required for all penalty prescribed by law is at least six (6) years and one (1) day without regard to fine, except if the accused was arrested by virtue of a lawful arrest without warrant.

May the presence of the respondent be dispensed with during preliminary investigation?

Yes. The personal appearance of a respondent during preliminary investigation may be dispensed with provided that the counter-affidavit was subscribed and sworn to before any prosecutor, or any government official authorized to administer an oath, or in their absence, a notary public. DC 15, Sec. 10 (e)

WHAT ARE THE STEPS/PROCEDURE IN CONDUCTING A PRELIMINARY INVESTIGATION?

The preliminary investigation is initiated by the filing of the original complaint- affidavit with two (2) duplicate copies for official file and such number of copies as there are respondents: The complaint shall state: § The names and addresses of the parties, the date and place where the alleged crime was committed § Shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish prima facie evidence with reasonable certainty of conviction.

Category 3

WHAT IS THE QUANTUM OF EVIDENCE REQUIRED DURING PRELIMINARY INVESTIGATION?

Answer: Prima facie evidence with reasonable certainty of conviction.

WHAT IS A PRELIMINARY INVESTIGATION??

Summary proceeding to determine whether a person should be indicted in court after ascertaining, based on the evidence provided and after case build-up has been conducted, that there is prima facie evidence with reasonable certainty for the respondent's conviction and that he/she should be held for trial. (DC 15, Sec. 7. Preliminary Investigation )

WHAT IS PRIMA FACIE EVIDENCE WITH REASONABLE CERTYAINTY OF CONVICTION?

Such evidence, on its own and if left uncontroverted, shall be sufficient to establish all the elements of a crime or offense charged, and consequently warrant a conviction beyond reasonable doubt. (DC 15, Sec. 5)

WHAT IS THE EFFECT OF FAILURE TO SUBMIT THE HARD COPIES OF THE E-FILED DOCUMENTS AND A VERIFIED DECLARATION?

Answer: Failure to timely file the affidavits via email and to submit the hard copies thereof with the required verified declaration shall be deemed a waiver of the party's right to do so. Electronic copies of affidavits or of any accompanying document not in PDF, or in PDF but not legible, or are protected by a password or other encryption, or with embedded executable code or scripts, or are otherwise corrupted, shall not be considered as having been filed and therefore excluded from the records of the case. DC 15, Sec. 11 (i)

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 trial4. To protect the state from having to conduct useless and expensive trials

Category 4

Who may conduct preliminary investigation?

1. All prosecutors and their assistants 2. Prosecution attorneys 3. State prosecutors 4. Other officers as may be authorized by law.

May the investigating prosecutor, after preliminary investigation, motu proprio file the information or dismiss the case as he/she sees fit?

No. The prosecutor must first secure the prior written authority or approval of the provincial/city or chief state prosecutor.

Who can conduct diversion proceedings?

1. Barangay Officials2. Local Social Welfare and Development Officer3. Law Enforcement Officer4. Prosecutors

What are the grounds for the outright dismissal of a complaint?

Answer: 1. Lack of jurisdiction2. Prescription 3. Complainant is not the proper party. 4. Complaint fails to state that a criminal offense or that a violation of penal law has been committed. 5. Complaint and supporting affidavits were unsigned and/or have not been duly subscribed and sworn.

When should a prosecutor refer a Child in Conflict with the Law (CICL) for intervention and diversion?

A CICL should be referred for INTERVENTION when exempt from criminal liability, being 15you and under, and when above 15 but below 18, who acted without discernment. A CICL should be referred for DIVERSION when the age is above 15 but below 18, who acted with discernment, for offenses with the imposable penalty of less than 6 years.

Category 5

Is the lack of a preliminary investigation a ground for dismissing a complaint?

No, the absence of a PI does not 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 refer the case to the prosecutor for investigation. The trial court should suspend proceedings and order a PI.

Can the offended party of a light offense go directly to court to file a criminal action?

No. General rule: before a complaint is filed in court, there should have been a confrontation between the parties before the Lupon Chairman. The Lupon secretary should certify that no conciliation or settlement was reached attested to by the Lupon Chairman. The complaint may also be filed if the settlement is repudiated by the parties.

Can the investigating prosecutor allow the respondent to file a Motion to Dismiss in lieu of a Counter-Affidavit?

Answer: A motion to dismiss in lieu of a counter-affidavit shall not be allowed except when it is verified by the respondent and contains his/her defenses, in which case it shall be treated as a counter-affidavit. DC 15, Sec. 10 (e)

WHAT IS A VIRTUAL PRELIMINARY INVESTIGATION AND WHEN CAN IT BE AVAILED OF?

Virtual preliminary investigation, as an alternative means, is the conduct of preliminary investigation through videoconferencing using the appropriate information and communications technology (ICT). This may be availed of at the initial hearing where both parties are present and the ICT therefor is available to both the prosecution office and the parties. DC 15, Sec. 7

WHAT CAN THE PROSECUTOR DO DURING A CLARIFICATORY HEARING?

During the clarificatory hearing, the investigating prosecutor may perform any or all of the following: (1)ask clarificatory questions; (2)have the case submitted for resolution; or (3) require the filing of a reply-affidavit and/or a rejoinder-affidavit. Dc 15, Sec. 10 (g)

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