Criminal Procedure

Herrera Outline
Villanueva notes, 2014
RULE 112; Preliminary Investigation
I. Nature of preliminary investigation; Purpose
1. Sec 1, Rule 112: Preliminary investigation is an inquiry or
proceeding..
2. A mere inquiry or proceeding and not trial. No direct crossexaminations. The purpose is to determine probably cause.
Evidences are shown to know if such can engender a well
founded belief that a crime has been committed and that
respondent is probably guilty thereof.
3. Prosecutor decides if there is probable cause. Probability
which require more than suspicion but less evidence than that
required for a conviction.
4. Prosecutor does not exercise adjudication nor rule making
functions. Preliminary investigation is merely inquisitorial.
5. The purpose is also to secure the innocent from malicious,
hasty and oppressive prosectution.
II. Nature of the Right to a preliminary investigation
1. Preliminary Investigation is not a fundamental right, nor,
required by the Constitution. It is also not part of the rights of
the accused. Such is a statutory right and such may only be
invoked if specifically created by a statute. A component of
due process in criminal justice. Hence, it is a substantive right
which denial would result to denial of due process.
2. Preliminary investigation is a judicial inquiry. Hence, the
prosecutor or investigating officer is acting (only acting but
not actually!) as a quasi-judicial officer. It is a judicial appraisal
of the merits of the case on the grounds that whether it must
be tried or not. The prosecutor has the same power as a judge
wherein both are to be conducting such inquiry.
3. Not a quasi-court. Decision regarding the complaint is not
appealable in court (as per Rule 43) The quasi-judicial
authority of the Preliminary Investigation only reaches upon it
being similar to other executive departments exercising
powers akin to that of a court. It is different from a quasijudicial proceeding.
4. Preliminary investigation is not an actually quasi-judicial body
hence its decisions are not appealable under Rule 43. DOJ is
not a quasi-judicial body.

5. Since the Preliminary investigation and the DOJ is not a quasijudicial body, the same cant be subject of the constitutional
provision on court rulings (Sec 7 or Article 8)
6. Preliminary investigation is an executive function and not part
of trial.
III. Right to a preliminary investigation; waivable
1. The right may be waived through failure to invoke such right
before or at the time of the plea.
IV. Preliminary investigation vs preliminary examination
(preliminary inquiry)
1. Preliminary investigation is done by the prosecutor to
ascertain whether the offender must be held for trial. The
preliminary examination is done by the judge to to determine
probably cause for the issuance of a arrest warrant.
2. Preliminary investigation is executive in nature while the
preliminary examination is judicial in nature.
V. Probable cause in preliminary investigation
1. Probable cause is based on opinion and reasonable belief. It is
not based on clear and convincing evidence of guilt. Lies
within the discretion of the prosecuting officer.
2. Probable Cause > Bare suspicion. But Probable cause is <
evidence that justifies conviction. Only binding as to when a
suspect may stand in trial.
3. Determination of probable does not hold the same standards
of proof that a judgment or conviction requires. The
complainant does not need to be present in the Preliminary
investigation. Full and exhaustive presentation of evidences
are not required.
4. To determine probable cause, sufficient facts must be
established that the accused acted in such a manner that
there is a strong possibility that there is a crime.
VI. Kinds of determination of probable cause
1. Executive and Judicial
a. Executive determination Probable cause is determined
in preliminary investigation. A function given to the
Public Prosecutor. Quasi-judicial authority (not actual)
vested on the prosecutor and cannot be compelled by

the court to render a decision not subject to his own

discretion. (not subject of GAD)
b. Judicial determination Probable cause is determined by
the judge on whether or not a warrant of arrest must be
issued. The judge must be satisfied that such accused
must be put under custody as to not frustrate the ends
of justice. Cannot be forced to issue arrest warrant.
2. Probable cause to issue warrant of arrest lies on facts and
circumstances that would lead a reasonably discreet and
prudent man to believe that an offense has been committed
by the person to be arrested.
VII. Cases requiring preliminary investigation; when not
required
1. Before filing a complaint or information for an offenses where
the penalty prescribed is not less than 4 years, 2 months and
1 year, without regard to the fine
2. (Prior to amendments by RA 7691) offenses cognizable by
RTC. RA 7691, expanded the jurisdiction of MTC. However, now
the requirement is specifically 4 years, 2 months and 1 day.
VIII. Procedure for cases not requiring a preliminary
investigation
1. If no preliminary investigation is required (cases with penalties
less than 4 years, 2 months and 1 day) there are two ways of
initiating criminal action:
a. By filing the complaint directly with the prosecutor
b. By filing the complaint or information with the MTC.
IX. Direct filing with the prosecutor
1. When complaint is filed with the prosecutor (also as in Manila
and other chartered cities)
a. The address of the respondent shall be indicated
b. To establish probable cause, complaint must be
accompanied by:
i. The affidavit of the complaint
ii. The affidavits of the complainants witnesses
iii. Other supporting documents
c. Appropriate number of copies as to there is respondents
and additional 2 copies for the official file
d. Affidavits must be subscribed or sworn to before any
prosecutor or government official authorized to
administer oath. In their absence, notary public. Each
must duly examine and certify the said affidavits.

2. The prosecutor shall act based on the affidavits and other

supporting documents within 10 days from the submission of
the complainant. Respondent need not be issued a subpoena
nor required to issue counter affidavits.
X. Direct filing with the MTC
1. If directly filed with the MTC and falls under the LESS than 4
years, 2 months and 1 day rule, complaint shall be the same
as provided for in Sec 3 (a) , rule 112 will be observed) The
same when directly filed with the prosecutor.
2. If within 10 days, the judge finds no probable cause based on
the affidavits, it shall be dismissed. However, prior to
dismissal, the evidence and the complainant shall be
PERSONALLY examined by the judge.
3. The judge may require submission of additional evidence
within 10 days from notice. If there is still no probable cause
after additional evidence, case shall be dismissed within 10
days after the submission of the additional evidence.
4. If judge finds probable cause, he shall issue a warrant of
arrest. If accused is already in custody, a commitment order
shall be issued. IF judge is not satisfied that the warrant is not
necessary, court may issue summons instead. Warrant is not
mandatory, but judge will be deemed to have acted in grave
abuse of discretion if he issues a warrant based on allegations
and writing that he did not PERSONALLY examine.
XI. When preliminary investigation is not required even if the
offense is one, which normally requires a preliminary
investigation
1. If a person is lawfully arrested without warrant and the offense
charged in requires a preliminary investigation (has a penalty
of not less than 4 years, 2 months and 1 day). No need for
preliminary investigation because he was validly arrested
already.
2. IF the person is arrested in a place where a inquest prosecutor
is available. An inquest will be conducted in lieu of the
preliminary investigation. If no inquest prosecutor is available,
complain may be filed directly in court by the complainant or
peace officer based on affidavit of the offended party or
apprehending officer.
XII. Person arrested lawfully without a warrant may ask for a
preliminary investigation

1. If the person is lawfully arrested without warrant, he may ask

for a preliminary investigation before complaint or information
is filed. He must sign a waiver of Art 125 of the RPC and such
preliminary investigation must be terminated after 15 days
from its inception.
2. As per RA 7438, such waiver must be in writing and signed by
such person in the presence of his counsel otherwise, such
shall be null and void.
3. Even after the filing of the complaint or information, accused
may still ask for preliminary investigation within 5 days from
the time he learns of its filing. He must address it to the court
because upon the filing of the complaint or investigation, it is
already under the jurisdiction of the court.
XIII. Bail for a person lawfully arrested during the preliminary
investigation
1. Even if waiver of Art 125 of RPC (for the request for a
preliminary investigation) is made, accused may still post bail.
2. Application of bail must be applied for and issued in the city,
province or municipality where the person is actually
detained.
XIV. Questioning the absence of a preliminary investigation
1. Questioning the absence of the preliminary investigation must
be done before the plea is entered. Application of bail is not a
bar to raise such question. The court must resolve such before
trial.
2. The waiver of the right to preliminary investigation is implied
when the accused does not raise the question before he
enters his plea. If he enters his plea, the right is deemed
waived.
3. Lack of a preliminary investigation is not a valid ground to
filing a motion to quash.
XV. Absence of preliminary investigation; effect on jurisdiction
of the court
1. The absence of a preliminary investigation does not have any
effects to the jurisdiction of the court.
XVI. Absence of preliminary investigation; not a ground for
motion to quash

1. Absence of the preliminary investigation is not a ground for a

motion to quash.
XVII. Inquest proceedings
1. An inquest proceeding is conducted when there is a lawful
arrest without warrant for an offense which would require a
preliminary investigation. An inquest is a summary proceeding
different from that contemplated in section 3 of rule 112.
2. The inquest is conducted by a public prosecutor assigned as
with inquest duties as an inquest officer. Usually placed in
stations or headquarters of the PNP.
3. Inquest proceedings commences upon the reception of the
inquest office of the complaint and referral documents by the
law enforcement authorities (arresting officers). Such
documents are:
a. Affidavit of arrest
b. Investigation report
c. Statement of the complainant and witnesses
d. Other supporting evidences gathered
4. The detained persons presence is required for the inquest to
proceed. However exception may be made if the supposedly
detained person is in a hospital or maximum security or his
presence is not feasible due to age health and similar factors.
If necessary, he inquest officer shall the require presence of
the complaining witnesses and subject them to an informal
summary investigation or examination for the purpose of
determining probable cause.
XVIII. Possible options of the inquest prosecutor
XIX. The inquest must pertain to the offense for which the arrest was
made
XX. Who may conduct preliminary investigation and determine
existence of probably cause
XXI. The procedure for preliminary investigation must be strictly
followed
XXII. Initial steps in preliminary investigation; filing of the complaint for
preliminary investigation

XXIII. Dismissal of the complaint or issuance of a subpoena

XXIV. Filing of counter-affidavit by the respondent; no motion to dismiss
XXV. Action be taken if the respondent does not submit his counteraffidavit
XXVI. Clarificatory hearing if necessary; no right of cross-examination
XXVII. Determination by the investigating officer
XXVIII. Discretion of the prosecutor in filing of a criminal complaint or
information
XXIX. Resolution of investigating prosecutor; certification of preliminary
investigation
XXX. Effect of the absence of the required certification
XXXI. Forwarding of the records of the case for action; need for
approval before filing or dismissal
XXXII. Rule when recommendation for dismissal is disapproved
XXXIII. Motion for reconsideration
XXXIV. Appeals to the secretary of justice; filing a petition for review
XXXV. Rules of Court provisions when resolution is reversed or modified
by the
Secretary of Justice

XXXVI. Power of the Secretary of Justice to reverse resolutions of

prosecutors
XXXVII. Assailing the resolution of the Secretary of Justice; petition for
review under Rule 43 not allowed; Petition for certiorari under Rule 65
XXXVIII. Appeal to the Office of the President
XXXIX. Appeals under Rule 43 and Rule 45
XL. Records supporting the information or complaint filed in court
XLI. Action of the judge upon the filing of the complaint or information
XLII. When warrant of arrest is not necessary
XLIII. Withdrawal of the information already filed in court
XLIV. Some judicial pronouncements on preliminary investigation