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PRELIMINARY INVESTIGATION - Atty. Manila - 10/07/19

Atty. Manila: That is actually the main difference. Vicarious liability based on quasi
delict, Art. 103, based on crime. The other difference, class, is that in Art. 2180, there
is a defense. The defense of due diligence of a good father of a family, but on the other
hand, Art. 103, the employee is automatically liable as long as the employee fails to
pay. So in this question, class, you can see that there are different similarities
depending on the source of the obligation. So there may be one criminal act, but there
may be multiple obligations.

Atty. Manila: In subsidiary liability, is it required that the judgment of conviction explain
the subsidiary liability of the employee?

Student: No po.

Atty. Manila: Again, isn’t that a violation of due process of the employer?

Student: It is not a violation of due process, because…

Atty. Manila: Okay I’ll give you another scenario. Suppose there is a criminal judgment,
and it finds the employee civilly liable and criminally liable. Suppose the employee fails
to pay the civil liability. How can you enforce the subsidiary liability of the employer?

Student: The employer should pay the…

AM: How? How can you force the employer to pay the subsidiary liability if in the first
place, the subsidiary liability is not found in the criminal judgment?

Student: …

AM: The answer to that question, class, can be found in Art. 100 of the RPC. There is
no need to discuss the subsidiary liability of the employer because in every criminal
liability, there is a civil liability. So as to enforce the civil liability arising from the crime,
you only need to file a motion for writ of execution and it is the private offended party
that will do so because the private offended party will be the one affected by the civil
liability. Thank you Miss. Soriano.

AM: Mr. Salud? What is an independent civil action?

Student: An independent civil action… it is how the private party intervenes in the
criminal action.

AM: Ah really?

Student: An independent civil action arises from Art. 32, 33, 34, and Art. 2176 of the
new Civil Code.

AM: So what? What are they all about?

Student: it is about recovery from quasi-delicts and cases specified by law.

AM: Can you institute an independent civil action separate from the criminal action?

Student: You can institute independent civil action separate from the criminal action in
the cases falling under Art. 32, 33, 34, and Art. 2176.

AM: My question is why is that allowed?

Student: It is allowed because the separate civil action stems from civil liability aside
from delict.

AM: Again, again. You’re talking about civil liability. Isn’t it that in the criminal case,
there is already civil liability?

Student: Yes.

AM: So why can you institute a separate, independent civil action?

Student: You can institute a separate civil action…

AM: Independent civil action…

Student: Independent civil action because

AM: You already mentioned the answer…

Student: Because the sources of the civil liability arises not from delict.

AM: Arises from what?

Student: It arises either from quasi-delicts or in the instances mentioned by law.

AM: So, Art. 32, 33, 34? What are the sources of obligation of those three laws?

Student: The sources of obligation of Art. 32, 33, 34 is…

AM: There’s only five sources of obligations, just choose one.

S: Law.

AM: Quasi-delict! Still quasi-delict, class. Alright. The reason why you can institute
independent civil action aside form the criminal action is because precisely they have
different sources of obligation. The criminal action is based in the crime itself, which is
the one which imposes the obligation. Independent civil action arises from quasi-
delict. So since they are from different sources of obligation, they can be instituted
separately. That is the reasoning behind Rule 111.

AM: Question. Supposed Pedro committed physical injuries against Juan. So Juan
instituted an independent civil action for damages arising from Art. 33. The Court
awarded him 1M pesos in damages. Subsequently, Juan also filed a criminal case
against Pedro for serious physical injuries. The Court granted him 1M in damages in
that criminal case. Question. Can Juan claim both damages? One from the
independent civil action, and the criminal case.

S: No, Juan cannot recover damages twice from the same action in the civil case.

AM: But they are based on separate obligations.

S: Juan still cannot recover.

AM: Why? The first one is sourced from quasi-delict. The other one is sourced from
crime. So they have different sources of obligation. In a sense, there are actually two
separate obligations.

S: …

AM: The answer to this, again, as I discussed earlier last meeting… Because while
there may be several obligations, it only arises from one act. So the rule is that you can
only recover one set of damages from one act. Otherwise, it will be “splitting the
causes of action.” That’s the reason, why, class. So there may be several obligations
for a particular act, but you can only recover damages based on one particular act
only. Thank you Mr. Salud.

AM: Ms. Manalo. What is a prejudicial question?

S: A prejudicial question is that which arises and to which if it is answered, gives rise
to the issue of the case.

AM: What are the requisites of a prejudicial question?

S: The requisites of a prejudicial question are as follows: First, that there is a pending
case po. Ay. First that there is a pending case. Next, that the issues of the pending
case are similar or related to the subsequent one…

AM: Just similar or related? What’s the more important phrase used by the Rules of
Court? That they are…? If you know this phrase, you will be able to answer any
prejudicial question.

S: Similar…

AM: That they are INTIMATELY RELATED. So it is not enough that they are similar.
They must be intimately related.

AM: And then? You mentioned that there is a pending case. What is that pending
case?

S: A civil action.

AM: Civil action. And then?

S: The third po is…

AM: So which comes first, the civil action or a criminal action?

S: Criminal action.

AM: So you file first a criminal action, then later on a civil action?

S: Civil action po.

AM: Civil action first, then a criminal action next. Okay. Can there be a prejudicial
question raised during a preliminary investigation? Or is it only raised during trial?

S: It is only raised po during trial because…

AM: Because the Court states that it may be raised during preliminary investigation.
Can the Court motu proprio recognise a prejudicial question? And what is motu
proprio? Do you know what that means? Anyone? Does anyone know what motu
proprio is? Third year students?

S: On its own.

AM: On its own. Motu proprio means on its own. So can the court, on its own, declare
a prejudicial question?

S: Yes po.

AM: Okay, in the Rules of Court it is very clear that the Court CANNOT motu proprio
declare a prejudicial question. It must be through a petition to raise prejudicial
question. Okay, thank you Ms. Manalo.

AM: Ms. Martinez. Can I borrow a whiteboard marker and an eraser?

AM: So let’s say Pedro, on May 1, 1990, married Jane. And then on May 1, 2018,
Pedro filed a declaration for nullity based on psychological incapacity, so Art. 26 of the
Family Code. It is still pending. Then on May 1, 2019, Pedro was caught in a
scandalous cohabitation with Marie. What is the crime committed? Scandalous
cohabitation?

S: Concubinage.

AM: Concubinage. So a concubinage action was filed against Pedro, but Pedro raised
a petition for prejudicial question because there is a pending case for declaration of
nullity of marriage. Question. Is there a proper prejudicial question?

S: No po.

AM: Because?

S: It is provided by the Revised Penal Code that one of the elements of concubinage is
that the man is legally married to the woman during the cohabitation or the act
committed by the accused.

AM: Suppose it’s not scandalous cohabiting, but they contracted a marriage in 2019.
What is the crime committed?

S: Bigamy.

AM: Bigamy. Can there be a prejudicial question of bigamy when it is filed?

S: …

AM: So with the facts, May 1, 1990, married Jane. May 1, 2018, declaration of nullity
still pending, then May 1, 2019, Pedro married Marie.

S: No po, there is no prejudicial question.

AM: Because?

S: It is provided in the RPC that there is bigamy when the man is legally married, and it
includes that there must be a declaration of nullity of marriage before he can contracts
another marriage for it to be valid.

AM: Do you remember what is declaration of nullity of marriage? When there is

declaration of nullity of marriage, what happens to the marriage?

S: It is terminated.

AM: It is void ab initio. What is the meaning of void ab initio?

S: It is void from the beginning.

AM: So it is if it has never occurred. When a marriage has never occurred, can there be
a prejudicial question of bigamy?

S: Yes po.

AM: That could be proper when it is annulment because when the ground is
annulment, the marriage existed but for some legal ground, the marriage is terminated
later on. But if it is void ab initio, the marriage did not exist just like in psychological
incapacity. Then there is no marriage to deliberate. So is there a prejudicial question?

S: Yes po.

AM: So there is?

S: Yes.

AM: Alright. This is the mostly questioned before the Supreme Court ruled in the case.
Now, regardless whether it is declaration of nullity or annulment of marriage, there is
NO prejudicial question with respect to bigamy. Why is that? Because the Family Code
is very clear now. The marriage is subsisting until and unless there is a declaration of
nullity of marriage. So if you do not file, or they do not grant any declaration of nullity
of marriage, insofar as the criminal cases are concerned, you’ll still have a valid
marriage regardless whether later on, the marriage have been declared void ab initio.
Thank you, Miss Martinez.

AM: Ms. Guerilla? My next question refers to estafa, but I will first discuss what is
estafa. So estafa is a crime against property under Art. 315 of the RPC. There are
many types or ways to commit estafa, but two most common ways to commit estafa
would be Art. 315(1-b) wherein there is misrepresentation of a commission or trust
agent. In that crime, class, there is a trust relationship between the offended party and
the offender. And the the offender is required to deposit some kind of money or
obligation for a die date and during the due date, the offender did not comply with the
obligation. Because there is a trust relationship, there is a misappropriation of funds,
therefore, that is estafa. The second type of estafa, class, most common type of estafa
is misrepresentation during a contract. So that is Art. 315(2). So in this case, class, do
you remember your frauds in contracts? There are two types of frauds in contracts.
Incidental fraud and casual fraud. Incidental fraud if there is an existing contract, and
you commit fraud in the performance. Casual fraud if you commit fraud, and therefore,
the contract was consumed. So for example, Maria bought an LV bag from Pedro, and
because Pedro misrepresented that the bag was original. When Maria got the bag, it
was fake. So Pedro in that case, committed estafa. So there are many prejudicial
questions in estafa. So Pedro is the agent of Juan. Pedro was given 20k by Juan to
repair his car. If Pedro cannot repair his car by May 1, 2019, Pedro will return the
money. So when Pedro received the 20K, he signed a receipt in favour of Juan. By
May 1, 2019, Pedro failed to return the 20K or repair the car. So Juan filed a civil action
for collection of sum of money against Pedro. Pedro, in his defense, stated that the
receipt presented by Juan is falsified. Now Juan filed another case of estafa against
Pedro. Question: Can Pedro raise the civil action for claim of sum of money in the
criminal case of Estafa?

S: No po.

AM: Why is that?

S: Because the act has already been consummated. The act which constitute estafa,
which is the subject of criminal action of Juan against Pedro is already consummated.

AM: What is the act of estafa in this case? The act which constitute estafa is the failure
to return the money. What is the proof that Pedro actually has the money?

S: The receipt.

AM: If the receipt is falsified, did Pedro receive the money? If there is no proof that
Pedro got money, can there be an act of misappropriation? So, is the civil action a
prejudicial question in the criminal case of estafa?

S: Yes po.

AM: According to Riano, no, it is not.

S: Because of the elements of estafa…

AM: The primordial element in the crime of estafa is misappropriation by the agent, so
meaning, non-return of the 20K during the due date. But if there is no proof that the
agent has the 20K, then what element of estafa will be applicable?

S: There will be none.

AM: So there is a prejudicial question? So Dean Riano is wrong?

AM: This is actually based on an actual court case. So if I’m the defense counsel, I’m
actually confusing you and the prosecutor. Can you find a loophole in the scenario?

S: Since there is no proof of crime committed…

AM: Well then you will acquit my client?

AM: At first glance, class, it appears that there may be a prejudicial question. But that
is more apparent than not. Because the receipt is not the element of estafa. The elect
of estafa is the act of misappropriation. So what is the receipt? It is merely a proof.
And there may be many evidence to prove the receipt of money by the agent. So
receipt is only just one of them. If the receipt is only one of the many evidence that
could prove the receipt of the money, then that is not intimately related to the criminal
case. So there may be other available evidence to prove the receipt of the 20K by
Pedro, such as testimonial evidence, object evidence, demonstrative evidence. So
there is no intimately related issues between the civil case and the criminal case for
estafa. Alright, thank you Miss Guerilla.

AM: When is an instance that they may be an actual prejudicial action for estafa is that
when we deal with corporations. In corporations, class, as you will learn later on, it is
important that the appointment of an officer is valid and binding. If the appointment of
an officer is not valid and binding, then any corporate act will be deemed void. So for
example, Juan is a vice president of a company, and then Pedro is the President.
Pedro reminds Juan to return the 10M pf the corporation. Pedro then files a civil action
for return of sum of money. On the other hand, Juan files an intra-corporate dispute to
question the validity of the appoint of Pedro. Suppose there is subsequent criminal
case for estafa. Is there a prejudicial question? The answer to that, class, is yes.
Because the authority of Pedro to demand the 10M from Juan is the primordial issue in
the intra-corporate dispute questioning his appointment or election of the president of
the corporation. So be very careful class in looking at the facts when there is a
prejudicial question involving the criminal case of estafa. Because that is a very hard
question. Mr. Bana?

AM: Now let us go to the more diffract rule, Rule 112. What is Rule 112?

S: Rule 112 is about preliminary investigation.

AM: So what is a preliminary investigation?

S: It is an inquiry or proceeding wherein the primary purpose is to determine whether

or not there is a ground that will show whether the respondent probably is guilty of the
crime charged.

AM: Is a preliminary investigation an administrative proceeding?

S: Executive po. Ah, no po.

AM: So it is not an administrative proceeding? Anyway, before that… Are the rights
under the custodial rights of the accused applicable in the preliminary investigation?
Do you know the custodial rights of the accused?

S: No po.

AM: You do not know the custodial right of the accused? The right to be silent, to
counsel…

S: The right to be informed.

AM: No, the right to be informed is NOT a custodial right, it is a right during trial. So
are custodial rights of the accused applicable in the preliminary investigation?

S: Yes.

AM: Yes? So during preliminary investigation, the accused can demand “I have the
right to remain silent!”?

S: In that case po, no po pala.

AM: So custodial rights are not applicable during preliminary investigation? So can you
name those?

S: …

AM: Come on this a review of your Constitutional Law 2.

AM: Anyway, I assume you do not know what is a hearsay? Chismis? You know class
in the Rules on Evidence, we have a thing called hearsay. So when you present any
person in court, you need to have personal knowledge of any testimony. So for
example, if you heard your seatmate state that she saw Juan kill Pedro, and then you
testified in court, and then you tell the judge, “Judge my seatmate said that he killed
Juan.” That is hearsay because you do not have personal knowledge on your
statements.

AM: Question: Is hearsay allowed during preliminary investigation?

S: Yes po.

AM: So chismis is allowed in preliminary investigation?

S: If there is an executed affidavit.

AM: So an executed affidavit contains hearsay? You know class, that actually is the
primary issue in the cases of Jinggoy, Revilla, and Enrile. In those cases, the
prosecution provided the affidavit of Benhur Luy. So Benhur Luy presented an affidavit
stating that he heard his boss Napoles talking to these senators. So that is chismis or
hearsays. Do you think that was allowed during preliminary investigation?

S: I think so.

AM: Where is Jinggoy, Revilla, and Enrile now? Are they incarcerated? So what do you
think happened during the preliminary investigation? Was the hearsay testimonies
allowed, or not?

S: In that case po, it was not allowed, therefore…

AM: Very obvious you did not read the news, no? As a law student class, you must
also read the news, not only the latest jurisprudence, but also the latest news. Anyway,
the court ruled in those cases that hearsay evidence is allowed during preliminary
investigation. Why do you think so?

S: Because in preliminary investigation, the purpose is to determine if there is a

probable cause and its purpose is not to determine whether or not the respondent is
guilty of the crime charged.

AM: The reason why hearsay is allowed during preliminary investigation is because a
preliminary investigation is not a judicial proceeding. It is merely an administrative
proceeding. In administrative proceedings, the Rules of Court is not strictly applicable.
That is the reason why. Thank you, Mr. Bana.

AM: Ms. Torres. Can Congress pass a law abolishing preliminary investigation?

S: No po. Because preliminary investigation, it is essential in determining the

probability of committing a crime.

AM: So suppose Congress instead pass a law abolishing preliminary investigation, and
instead replacing it with inquest proceedings. Is that allowed?

S: No po. Because in preliminary investigation, it lessens the burden of embarrassment

and expenses of going into court.

AM: So abolishing it will make the parties more embarrassed?

S: Probably po.

AM: Can you give a better answer? Okay I will help you. The answer to that is yes,
Congress can pass a law abolishing preliminary investigation. Why is that?

S: The Congress may abolish preliminary investigation if they could replace it with…

AM: No they will replace it with inquest proceedings. So the proceedings will only go
for three days. Cause preliminary investigation is very tedious eh, you have ten days,
and another ten days, then thirty days. Just apply inquest proceedings. Three days
maximum. Is that allowed?

AM: Yes it’s allowed. That’s an easy answer. But why?

S: Maybe it would help in determining the probable cause of the accused in a much
shorter period of time.

AM: Because, class, a preliminary investigation is a mere creation of a statutory right.

So if it is mere statutory, it can be abrogated by another statute. It is not
Constitutionally enshrined compared to the rights of the accused under the Bill of
Rights. So, preliminary investigation is a mere statutory creation and it can also be
abolished by another statute. What are the other two kinds of determination of
probable cause?

S: The two kinds of determination of probable cause, first by the public prosecutor…

AM: You call that? Executive determination of probable cause. What is the other one?

S: The other is the judicial determination.

AM: Where can you find the executive determination of probable cause? It’s found in
Rule 112. But what section? It’s found under Sec. 4. How about judicial determination
of probable cause, where can you find it? Sec. 5, class. So what’s the difference
between judicial and executive determination of probable cause?

S: The executive determination is done by those that are performing their executive
functions like the prosecutors… The judicial is…

AM: Alright. One main difference of executive and judicial determination of probable
cause is that in executive, the purpose of the determination is to determine whether
you shall file a criminal information in court. On the other hand, judicial determination
of probable cause, the purpose of which is to determine the issuance of a warrant of
arrest or a commitment order. That’s the main difference between the two types of
determination of probable cause. Thank you, Ms. Torres.

AM: Mr. Anonuevo? Actually there are four instances when the determination of
probable cause is found in the Rules of Court. Can you give me those four instances?

S: …

AM: I’ll give you two. Number one is executive determination of probable cause found
under Sec. 4 of Rule 112, when the prosecution determines whether to file an
information. Number two, judicial determination of probable cause, when the judge
determines whether to issue a warrant of arrest or a commitment order. What’s the
other remaining two instance where determination of probable cause is found in the
Rules of Court?

S: If the offsets being charged… depending on the punishment…

AM: So depending on the punishment, you determine probable cause?

S: …

AM: So I’ll give you the instances when there is determination of probable cause.
There are two remaining instances when there are also determination of probable
cause under ROC. I’ll give you a tip. This first instance is when there is a crime
committed, and then there is a police officer. What happens?

S: …

AM: There are four instances when probable cause is found in the ROC. So number 1,
when the prosecutor determines whether to file an information in court. Number 2,
when the judge determines whether to issue a warrant of arrest or a commitment
order. Number 3 is when an officer, in the presence of an officer, a crime is committed,
or a crime has just been committed. What is probable cause under such instance?

S: …

AM: Come on you thoroughly discussed this in your Constitutional Law 2. When a
crime has just been committed, or is being committed, the arresting officer will
conduct a warrantless arrest. But before he can conduct that, there must be a
determination of probable cause that the crime has just been committed or is being
committed, and the person to be arrested probably committed the offense. So that is
the third instance that you can determine probable cause. That is found under Rule
113 under the ROC. The 4th instance where there is determination of probable cause,
where is that?

S: …

AM: When the Court issues a search warrant. Before he issues a search warrant, he
must determine first whether there is probable cause that there is an offense
committed and the place to be searched would probably come up with the effects of
the crime. So those are the four instance when there can be a determination of
probable cause.

AM: Who are authorized to conduct preliminary investigation?

S: Prosecutors, Regional Prosecutors…

AM: Number 1, Provincial or City Prosecutors. Number 2, National or Regional or State

Prosecutors. Number 3, other officers authorised by law. Are prosecutors judicial or
executive officers?

S: Executive.

AM: Under what branch of government does the prosecutor work for?

S: Under DOJ.

AM: May judges of the first level Courts conduct preliminary investigation?

S: No sir. Before, judges conduct, but now…

AM: So before, judges conduct preliminary investigation, but now, since prosecutors
are conducting preliminary investigation, the judges are not anymore conducting it?

S: …

AM: Come on class these are the easy questions. We’re not even in the hard part yet.

AM: So what, can the first level courts conduct preliminary investigation or what?

S: No sir.

AM: Because?

S: Because there’s possibility…

AM: Because the Supreme Court removed the power of the first level judges of the
courts to conduct preliminary investigation. The reason why class is that before there
was the amendment, there was a lack or limited number of prosecutors in the
Philippines. Even up to now, there are limited numbers of prosecutors. So in the far
flung areas in the barrios, since there is no available prosecutor, it is the municipal trial
court judge who conducts preliminary investigation. But in the advent of development
and the promotion of the standardisation of employees, now more prosecutors apply
for the job. Thus, the Supreme Court removed authority of the first level Courts to
conduct preliminary investigation. That’s why so many provisions under Rule 112 was
amended. Thank you, Mr. Anonuevo.

AM: Ms. Gumapac? Aside from the prosecutor, can you cite other officers that are
authorized to conduct preliminary investigation?

S: Aside from the prosecutor, the following may also conduct preliminary investigation.
First, officers from the office of the Ombudsman, with regard to cases filed before or
against persons of authority. Also, officers from PCGG may also conduct preliminary
investigation. And officers from COMELEC may also conduct preliminary investigation.

AM: Okay I will ask you a question regarding the Ombudsman. Recently, there was a
criminal case filed against our Vice President. Do you know what the criminal case is?
Sedition. Do you know where it was filed? In the DOJ under the Chief Prosecutor’s
office. Is Leni Robredo a public officer?

S: Yes po.

AM: if she is a public officer, then why is it that the DOJ is conducting the preliminary
investigation and not the Ombudsman?

S: Because Leni committed the crime of Sedition as an ordinary citizen and not by
reason of her office as Vice President.

AM: Ah really? So we must distinguish what is the function of the person? I’ll give you
another example. In May 1, 2001, there was a phenomenon EDSA Tres. EDSA Tres
wherein 70K protestor marched to Malacanang Palace and it was orchestrated
allegedly by Sen. Honasan. So Sen. Honasan was charged will rebellion in the DOJ.
Question, is that allowed filing a crime against a senator in the DOJ for preliminary
investigation, and not with the Ombudsman?

S: Yes po.

AM: Yes, it is ruled by the SC that it is allowed to be filed in the DOJ, not with the
Ombudsman. Do you know the reason why?

S: Because the DOJ has the authority to determine if there is a probable cause that the
offender has committed the…

AM: I thought it is the Ombudsman that has the authority to determine whether the
public officer has committed a crime, or probable cause to determine.

S: The authority of the Ombudsman who will conduct the preliminary investigation will
arise if the crime or the offense committed is in relation of the office of the offender.

AM: Really? So only when it is in relation to the office will the Ombudsman step in?

S: …

AM: The answer to that is found even in the Riano book. Because the Ombudsman
does nt merely have jurisdiction over determination of probable cause in preliminary
investigation of public officer. It has the primary jurisdiction. So the SC said that the
meaning of primary jurisdiction is that other branches of government can conduct
preliminary investigation if allowed by the Ombudsman. However, from the moment
the Ombudsman takes charge, then jurisdiction of the preliminary investigation shall
now be transferred to the Ombudsman. So the reason why, class, public officers are
charged with crimes in the DOJ for preliminary investigation is because the
Ombudsman is not really in charge. That is the reason. Alright. Thank you, Ms.
Gumapac.

AM: Mr. Recto? When is a preliminary investigation required?

S: When the penalty for the charge is above 4 years, 2 months, and 1 day.

AM: So 4 years, 2 months, and 2 days?

S: No, starting from 4 years, 2 months, and 1 day, and above po.

AM: Alright. Suppose the offense has a prescribed penalty that is under 4 years, 2
months, and 1 day. What happens?

S: The complaint must first be filed with the prosecutor for conducting of preliminary
investigation.

AM: So when the offense is less than 4 years, 2 months and 1 day, you file it with the
prosecutor?

S: When it is less, it may be filed directly with the MTC or MCTC.

AM: So you file what?

S: A complaint or information.

AM: The complaint or information directly with the MTC or the MCTC, or MTCC.
Suppose it is file with the prosecutor… you know it can be filed with the prosecutor
when?

S: The charge or the crime will be filed within the chartered cities or in Manila.

AM: Suppose the crime committed is within the chartered cities of Manila. So it may
be filed with the prosecutor? What will the prosecutor do?

S: The prosecutor shall, within 10 days, investigate and decide whether or not
probable cause exists for him to file the information charged and the person to be
charged is probably guilty thereof.

AM: So you will also conduct preliminary investigation to determine existence of

probable cause?

S: Yes.

AM: So there is no difference when an offense is 4 years, 2 months, 1 day, it will be

conducted for preliminary investigation and when the offense is less than that, also
preliminary investigation?

S: If it is committed in Manila and its chartered cities.

AM: So the prosecutor shall always conduct preliminary investigation regardless of the
crime?

S: Yes.

AM: The answer to that is the prosecutor does not conduct preliminary investigation
when the crime committed has the prescribed penalty under 4 years, 2 months, and 1
day. What does he do? Anyway, I can’t expect you to answer that because the answer
is not in the Rules of Court. That is actually the dilemma in the ROC, it does not
provide for the procedure for what happens when it is less than 4Y,2M,1D. It does not
state in any of the provisions. So what happens is that the DOJ will issue the Manual
of Prosecutors. It provides what will happen when the offense committed is less than
4Y2M1D. In that case, class, when the complaint is filed with the prosecutor’s office,
the prosecutor shall conduct what we call a summary investigation. So what is a
summary investigation? Under the Manual of Prosecutors, summary investigation is a
short or brief investigation conducted by the prosecutor to determine probable cause.
What is the difference between a summary investigation and a preliminary
investigation? The difference is in summary investigation, counter-affidavits of the
respondent is not anymore required. It is merely summary, one sided. And it is very
fast, only 10 mins. So unlike in preliminary investigation that it has ten steps. In
summary investigation, only one. And there is only four counter-affidavits. How about if
the complaint is directly filed with the MTC, what happens?

S: The judge of the MTC where then information or complaint is filed may conduct
judicial finding of probable cause wherein he may decide through the affidavit
submitted, and pieces of evidence submitted whether there is probable cause to serve
a subpoena…

AM: Subpoena? So you’re telling me that when a criminal complaint is filed directly
with the court, the judge will immediately go to the judicial determination of probable
cause?

S: Whether there exists a probable cause to issue a warrant of arrest or commitment

order.

AM: So in that case, there is no executive or judicial? Only judicial? Go straight to the
judicial determination of probable cause? Is that what you’re telling me? The judge will
not conduct preliminary investigation?

S: The judge will conduct preliminary investigation…



AM: So a judge can conduct preliminary investigation? Anyway. What will happen,
class, is that the judge will also conduct a summary investivgation. In that case, it will
determine immediately the existence of probable cause to determine whether to issue
warrant or commitment order, or merely, in some instances, a warrant is not actually
required when the penalty is merely a fine. In that case, again, counter-affidavits is not
anymore required because it is merely summary in nature. The judge in that case will
also conduct summary investigation. In either case class, whether it is with the
prosecutor or the judge, there shall be both the determinations of probable cause.
Okay, thank you, Mr. Recto.

AM: Mr. Balingit? What are the ten steps in preliminary investigation?

S: The following are the steps in preliminary investigation. First, the complainant must
first file the complaint to the investigating prosecutor. Said complaint shall state the
address of the respondent. The affidavit of the complainant and its witnesses and
other supporting documents. After which, the said complaint must be sworn and
certified.

AM: Let’s go to the next step. After complaint what happens?

S: After complaint, the investigating prosecutor must require the respondent to file
its…

AM: So when the complaint is filed, the prosecutor must issue a subpoena?

S: The prosecutor must first determine whether he will dismiss the case or issue a
subpoena in the existence of probable cause.

AM: And then? What is the next step?

S: If he finds no probable cause, he will dismiss.

AM: Suppose he finds probable cause, issue subpoena, and then what happens next?

S: The investigating prosecutor shall issue a subpoena to the respondent wherein it

must include the complaint…

AM: Then afterwards, what will happen?

S: He must require the respondent to file a counter-affidavit.

AM: So, respondent, counter-affidavit? Then what’s the next step?

S: Ten days after filing of counter-affidavit, the prosecutor shall send the counter-
affidavit to the complainant, and then he will determine whether there is probable
cause through investigation.

AM: What’s the next step?

S: After determination of probable cause, he may require an investigation.

AM: Not really.

S: Ay, hearing.

AM: What do you call that hearing.

S: Summary…

AM: Clarificatory hearing. And then?

S: In the said hearing, there is no right to cross-examine.

AM: After the clarificatory hearing, what will happen?

S: The prosecutor would then file an information…

AM: Not file. Will draft a resolution and information. What happens next?

S: The resolution and information will then be transferred to the judge.

AM: No.

S: To the accused.

AM: No. Where will it be forwarded?

S: It will be forwarded to the court.

AM: No. It will be forwarded to the boss. To the City or Provincial Prosecutor. What
happens after it is forwarded?

AM: The City/Provincial Prosecutor, or the Chief State Prosecutor, or the Ombudsman
as the case may be, may approve, deny, or reinvestigate. What’s the next step?

AM: The next step actually is optional. Petition for Review with the SOJ. What’s the
last step?

S: It would be filed with the court, and then the judge will determine whether there is
probable cause to issue a warrant of arrest, or a commitment order.

AM: So those are the ten steps class. These are found under Sec 3-5 of Rule 110.
Thank you Mr. Balingit.

AM: Ms. Rosales? Now let’s go one by one. What is the first step?

S: First is to address the complaint to the… When the complete information…

AM: First step is to file a complaint. Question. Is the complaint in the preliminary
investigation the same complaint under Sec. 3, Rule 112?

S: …

AM: Can you read Sec. 3, Rule 112?

S: (Reads Sec. 3)

AM: Is that complaint the same as the one filed with the Office of the Prosecutor?

S: Yes.

AM: So why is it found under Rule 110, not Rule 112?

S: I change my answer?

AM: So what’s the difference? Come on this was discussed earlier by your classmate.

S: Because the complaint filed in Rule 112 is the complaint filed based on a criminal
case…

AM: We’re not conducting a preliminary investigation, we’re just filing a complaint.
Okay the difference is under Rule 110, the complaint contemplated therein is the
complaint filed directly with the Court. When do you file again directly from the court?

S: …

AM: When the prescribed penalty is under 4Y2M1D. In those cases, class, you filed
directly with the Court, particularly with the MTC. On the other, under Rule 112, the
complaint contemplated is the complaint filed with the prosecutor’s office.Who
receives the complaint in the prosecutor’s office?

S: …

AM: So when you go to the prosecutor’s office, there are so many persons there. You
have the assistant prosecutor, the associate prosecutor, the clerks, the city and
provincial prosecutor. So who receives the complaint in a preliminary investigation?

S: The Clerk of Court, sir.

AM: Does a prosecutor have a clerk of court? Of course not. Anyway, I’ll give you
choices. It is the city or provincial prosecutor, or is it the asst. or assoc. prosecutor?

S: The associate?

AM: Because the city or provincial prosecutor is the one that approves the resolution
of the information. The one that makes the information and resolution is the assoc. or
asst. prosecutors. They have a hierarchal level. First level is the associate and the
assistant prosecutor, next level is the city/provincial prosecutor, then we have the
regional/national state prosecutors, then we have the Secretary of Justice.

AM: After filing of the complaint, what will the prosecutor do?

S: The prosecutor will determine if there is probable cause… the investigating officer
shall either determine if the complaint should be dismissed or a subpoena should be
issued.

AM: Okay. So to whom shall the subpoena be issued?

S: To the respondent.

AM: What do you call the adverse party in a complaint during preliminary
investigation? Do we call him as the respondent, defendant, or an accused?

S: The respondent.

AM: Why not accused?

S: Because it is not yet determined whether he is already an accused.

AM: How do you determine whether a person is an accused or not?

S: If there is determination of probable cause to classify him as an accused.

AM: What is the Tagalog term for an accused?

S: Akusado.

AM: When does a person become an akusado?

S: …

AM: When there is an information filed. If there is no information filed, a person is

called a respondent. Okay, thank you, Ms. Rosales.

AM: Ms. Gamboa. Does the respondent in a preliminary investigation have the right to
examine the evidence?

S: Yes po. The respondent has the right to examine the complaint, and secure a copy
of the said complaint either to furnish it through his own expense po.

AM: Does the respondent have the right to cross examine the complainant?

S: No.

AM: So are you telling me that the respondent has the right to examine the complaint,
but the respondent does not have the right to cross-examine the complainant?

S: Both po.

AM: So both rights, the respondent has? So he can examine the documents, and he
can also question the complainant?

S: Yes po.

AM: Okay, I’ll tell you the answer. The answer to that class is that the respondent does
not have the right to cross-examine the complainant. Why is that? Because the Rule
112 only states of the right to examine. So examine documents. Why is it the Rules
does not allow examination of complainant? The answer to that class is because of
the nature of the preliminary investigation. It is an inquisitorial proceeding. What is an
inquisitorial proceeding?

S: It is question and examine through the help of investigating officer or the judge.

AM: The inquisitorial proceeding is that there are no adversarial parties. Meaning, there
are no clashing parties. Only the heads or the mediator or in this case, the prosecutor
shall determine a particular fact: in this case, determination of probable cause. In
essence, there is actually no contradicting parties in preliminary investigation in theory.
That’s why there is no right to cross-examine a witness. At the same time, this is
merely an administrative proceeding therefor the Rules on Evidence is not applicable
cause that is only applicable in judicial proceedings.

AM: Can you give me the case of Estrada vs. Ombudsman? This was penned by the
cousin of the Ombudsman. Okay, I will give you the case. In this case, there are
multiple respondents in the criminal case of plunder filed before the Ombudsman.
Jinggoy Estrada, Enrile, and Revilla. The other accused would be Napoles. The other
would be the other Congressmen involved with the multi-million peso PDAF scam. So
in this case, class, there were so many respondents. And then Jinggoy, as a
respondent, received a copy of the complaint as provided by Sec. 3, Rule 112. So he
received the complaint and the affidavits of Benhur Luy and the other employees of
Napoles Corp. Estrada, when the time to file the counter-affidavit which is ten days,
did not file counter-affidavit because he filed a petition for certiorari. He alleges that
the furnishing of the complaints and affidavits are insufficient. According to Estrada, he
must, as a respondent, be also furnished a copy of the affidavit and counter-affidavits
and evidence of his co-respondents. So meaning, the affidavits of Jinggoy, Enrille,
Revilla, Napoles, should also be furnished to Jinggoy. Because according to Estrada,
he cannot give a proper defense during preliminary investigation if he does not know
all the facts provided by his co-respondents. Otherwise, there will be a violation of his
right to due process. What do you think is the ruling of the Court?

S: …

AM: Okay, I’ll tell you the answer. It is not a violation of his Constitutional right to due
process.

S: Because it was alleged that he had the chance to examine the complaint against
him and his co-respondents.

AM: He was never able to examine the documents of his co-respondents because he
was not given a copy of the counter-affidavits and documents of his co-respondents.
That’s why he’s saying that there is a violation of his due process, because he cannot
intelligently respond to the complain of the Ombudsman. And the Courts said that no,
that is wrong because, going back to the essence of a preliminary investigation, it is an
inquisitorial proceeding. It means that there are no counter-pleading parties. We do not
have an adversarial party. We do not need to controvert the evidence of the adverse
party. We do not even have to cross-examine your other party because what is
important is that the prosecutor, as the head of the investigation, merely receives all
your supporting documents. Insofar as you’re trying to examine the other parties, that
is not a matter of preliminary investigation. That is a matter of trial wherein you will
defend yourself before the court, not during preliminary investigation , because again,
it is merely an inquisitorial proceeding summary in nature. And that is the reason why.
Thank you, Ms. Gamboa.

AM: Ms. Isaga? Let’s go to the third step. What is the third step?

S: The respondent will file a counter-affidavit.

AM: Suppose the complaint files a counter-affidavit… That’s it? That is the end of it?
Question. Can the complaint file a reply-affidavit?

S: Yes.

AM: Ah, really, under Rule 112, a complainant can file a reply-affidavit?

S: It is not stated under the Rule, but…

AM: Oh! You’re a third year so you know what is a reply.

S: The complainant cannot file a reply-affidavit.

AM: Alright, I’ll give you a scenario. Suppose the charge is estafa. So the complainant
files a complaint for estafa, attaches the receipt that proves the non-return of the sad
funds. On the other hand, the respondent files a counter-affidavit attaching another
receipt stating that the complainant actually received the said funds. Can the
complainant file another affidavit to controvert the new receipt presented by the
respondent?

S: Yes po.

AM: Yes? So a reply-affidavit is allowed under the Rules of Court?

S: Yes po.

AM: Okay, the ROC does not contain a reply-affidavit. It is found under the manual of
prosecutors as explained by Riano in his book. As you all know, you have civil
procedure, right? In our civil procedure, you have a complaint, you have an answer,
you have a reply. A reply is mandatory when actionable document is attached to the
answer. Just like in this case, when there is a new issue raised in the counter-affidavit,
you can file a reply-affidavit. So the complainant can file a reply-affidavit. Next
question, can the respondent file another affidavit countering the reply-affidavit?

S: Yes po.

AM: What do you call that other affidavit?

S: Rejoinder po.

AM: Rejoinder. So a rejoinder affidavit is allowed. So a rejoinder affidavit is allowed?

S: Yes po.

AM: So we now allow reply, joinder… Reply is allowed under civil procedure. How
about rejoinder?

S: No po.

AM: But it is allowed under criminal procedure?

S: Yes po.

AM: Really?

S: Allowed din po and rejoinder under civil procedure.

AM: Ah really?! Rejoinder is allowed? So we might as well allow sur-rejoinder if that’s

the case. Okay, so rejoinder class, is not allowed. It is only until reply. But in criminal
procedure, under the manual of prosecutors as discussed by Dean Riano, a rejoinder
affidavit is allowed when it presents new issues. Next question. How about a
memorandum? Is a memorandum allowed in preliminary investigation? I’ll help you
answer. Is a memorandum allowed under civil procedure?

S: Yes po.

AM: Is a memorandum allowed under criminal procedure?

S: Yes po.

AM: Alright, in that instance, memorandum is also allowed in criminal procedure under
preliminary investigation provided that there are difficult questions of facts and laws.
Thank you, Ms. Isaga.

AM: Mr. Arada? What is the 4th step?

S: If the facts or issues are sufficient, the investigating officer should determine
probable cause.

AM: Suppose a counter-affidavit is not filed. What will happen?

S: The investigating prosecutor shall… The respondent cannot be subpoena’ed or the

counter-affidavit cannot file the issue, it shall resolve the complaint within 10 days.

AM: So when the respondent did not file his counter-affidavit, the prosecutor will solve
the case?

S: Yes. Upon the facts…

AM: Suppose the respondents did not file their counter-affidavit, will he prosecutor
grant the complaint?

S: It depends on the facts and issues given by the complainant. If the facts or issues
are sufficient Tod determine probable cause the officer shall grant the complaint. But if
it is not sufficient to determine probable cause, it will not grant.

AM: So are you telling me that even if the respondent did not file the counter-affidavit,
there will be the probability that there will be no probable cause? So it will actually
benefit the respondent even if I do not file the counter-affidavit…

S: It will be granted po pala.

AM: So even if the counter-affidavit is not filed, the prosecutor shall grant the
complaint and find probable cause? So it is mandatory to file counter-affidavit,
otherwise, probable cause will be found?

S: I stick with my first answer po pala. It depends on the facts and issues given by the
complainant.

AM: So there can be an instance when the respondent does not file the counter-
affidavit so that the prosecutor will desist the complaint? How is that possible? You do
not have anything form the adverse party, and yet the complaint will be dismissed.
How is that possible? It’s like in the game of basketball, when the other team does not
arrive, there is default. And then you still lose? How is that possible?

AM: Okay, I was just confusing you. Even without a counter-affidavit, it is not
automatic that the complaint will be granted, because the prosecutor will still
determine probable cause based on the existing complaint. The same rule applies in
civil cases. Even if you do not have an enemy, even if your enemy does not respond, it
does not automatically mean that your complaint will be granted. It will merely show
that if you lose and you do not have an enemy, it will show that your counsel is very
weak. It means he did not study your case very well. Wala ka na ngang kalaban, you
still lost. So again there is no 100% probability that you will win the case even if you do
not have a counter-affidavit fro your respondent.

AM: What is the 5th step?

S: When the facts and cases in the complaint are to clear, the officer may set a
clarificatory hearing.

AM: In the clarificatory hearing, can the parties be present?

S: They may be present in the hearing but they cannot cross-examine each other. They
are just present for the clarification of facts and issues not clear in the complaint.

AM: So are you telling me that when there is a clarificatory hearing, the parties will be
present, but they cannot ask each other questions?

S: If they have questions, they will direct it to the investigating prosecutor and he will
be the one to ask the other parties.

AM: Alright, thank you Mr. Arada.

AM: Ms. Villamor? Before we begin, the 5th step actually in a clarificatory hearing is
the embodiment of the inquisitorial proceedings in preliminary investigation. In that
instance class you can see that the other parties cannot actually talk to each other.
Only the prosecutor, head of the office, can talk to the parties. So if there are any
questions, the parties will direct them to the prosecutor and the prosecutor will direct
them to the other party. So in that instance there is no friction between the parties. So
what is the 6th step?

S: The 6th step is that the investigating prosecutor draft the resolution and an
information within five days and submit to the city or provincial prosecutor or to the
Ombudsman.

AM: the 6th step actually is that the prosecutor first determine whether there is
probable cause. If there is probable cause, he issues a resolution or information. If
there is none, what happens?

S: If there is probable cause then the investigating prosecutor will draft an information
and an information of a probable cause, and a certification that a preliminary
investigation has been done.

AM: So information and certification? That’s it?

S: And a resolution.

AM: Alright. What is the difference between an information and a resolution?

S: …

AM: Alright class, the difference between an information and a resolution is that the
information contains the accusatory portions, the crimes which states the elements
and the crime charged. Resolution contain all the factual findings of the prosecutor, so
the facts of the case, the issues, the findings of the prosecutors, the elements and the
law which is violated. So the resolution is the detailed portion of the results of the
preliminary investigation. The information is the shorter version of the findings because
it only contains the accusatory portion of the crime charged, that’s why its very
different. What do you file in court? Is it the information or the resolution?

S: The information.

AM: The information. The information is filed in court and the resolution class is merely
attached to it. What is the effect if the prosecutor finds probable cause? Does he file
an information in court?

S: When the prosecutor finds probable cause, the investigating prosecutor shall
submit the resolution and information first to the city prosecutor.

AM: It may not be automatically filed. It must first be forwarded to the city/provincial
prosecutor. What happens when the investigating prosecutor does not find probable
cause?

S: if the investigating prosecutor does not find probable cause, but a resolution on
dismissing the case, the investigating prosecute also send that resolution to the
provincial or city prosecutor for their approval.

AM: Alright, thank you Ms. Villamor. Mr. Gonzales? What is the 7th step?

S: The 7th step is that it shall be forwarded to the city or to the provincial prosecutor or
to the Ombudsman for cases which are under Sandiganbayan.

AM: Why is it required that the resolution and information must first be forwarded to
the city or to the provincial prosecutor?

S: It is required that it is forwarded to the city or to the provincial prosecutor because

they may reverse or modify the finding of the prosecutor.

AM: Suppose the information was filed in court without the approval of the city or to
the provincial prosecutor, what happens?

S: If it is without the approval…

AM: What if the assistant prosecutor already adopted the information, its ready for
filing, eh ang tagal ni fiscal mag-decide, I'll just file it in court. What happens?

S: If it is already filed in court, the court will now have the jurisdiction.

AM: What will the court do with the information?

S: The court will now set…

AM: So without the approval of the city or to the provincial prosecutor or the
Ombudsman, the court will set the case for hearing? Why is it required to be
forwarded to the city or to the provincial or Ombudsman? Why is it not allowed to
directly file in court? What happens when you try to file it in court?

S: The city or to the provincial prosecutor will review…

AM: You cannot anymore review because it’s already filed in court. What happens?
Obviously the information is defective. It does not have any authority from the city or
to the provincial prosecutor. What happens if it’s defective?

S: If it is defective then there will be remedies available.

AM: Class, if it is filed without the authority of the city or to the provincial prosecutor, it
is an information that does not have a written proper authority. Therefor it is subject to
a dismissal—motion to quash. But the issue is can a case motu proprio dismiss the
information if it does not have the authority of the city or provincial prosecutor? The
answer to this is no, it is not motu proprio because preliminary investigation is a mere
formal or administrative proceeding in nature. Anyway, if the city or to the provincial
prosecutor affirms the resolution of the information, what would happen?

S: If they approve the resolution, it will now be…

AM: If the city or provincial prosecutor approves the resolution or the information, the
information will be filed in court. What happens if the city or provincial prosecutor
reverses the resolution or information?

S: If the city or provincial prosecutor reverses the information, supposing they did not
accept the findings, they may reverse.

AM: Alright, the city or provincial prosecutor reverses? After that what happens?

S: It may be brought to the DOJ for…

AM: Class when the city or provincial prosecutor reverses the findings of a resolution
or information, the prosecutor in that case has two options. First is to dismiss the
complaint. Second one is move for further investigation. Alright, thank you Mr.
Gonzales.

AM: Ms. Mayor? What is the 9th step?

S: The 9th step is the petition for review by the SOJ.

AM: Okay. So once the information or resolution is approved or denied by the city or
provincial prosecutor, it can still be appealed to the SOJ, correct?

S: Yes po.

AM: Suppose the information was already filed in court, may the resolution of the
prosecutor still be appealed with the SOJ?

S: It may be reviewed under petition for review under Rule 65.

AM: No. Do not cite rules you do not understand. Rule 65 is a petition for certiorari.

AM: Alright. The answer to that is very simple. Even if the information is filed in court,
the resolution can still be reviewed by the SOJ because according to jurisprudence,
the SOJ has the power to review all the resolution orders of all his prosecutors.
Question. Does not this contradict the findings of the court in Crespo vs. Mogul?

AM: Crespo vs. Mogul is the bible case in Rule 112. If you do not know Crespo vs.
Mogul, you will not understand Rule 112. Do you know what happened in Crespo vs.
Mogul? No?

AM: Alright. Suppose the petition for review was filed. Okay I will just explain on the
topic Crespo vs. Mogul. In Crespo vs. Mogul, it is a criminal case for estafa filed with
the prosecutor’s office. So what happened is that the prosecutor found probable
cause, so the information for estafa was filed with the court. So while it is filed in the
court, the adverse party filed a petition for review with the Undersecretary for the SOJ.
During that time when the petition for review was filed, the adverse party or the
accused filed a motion to suspend proceedings pending petition for review.The court
in that case denied the petition filed for motion to suspend proceedings. Subsequently,
the SOJ found and reversed the resolution of the prosecutor because according to
him, there was no probable cause to file a case for estafa. So what the prosecutor did
was file another motion to withdraw the information for estafa. You know what
happened? The trial court denied the motion to withdraw the information for estafa
because according to the court, there is already probable cause to issue warrant of
arrest. So the issue before the SC is that whether the petition for review before the
SOJ will suspend proceedings in the trial court. What do you think happened?

S: In that case it will not suspend the…

AM: One difficult question faced by court in that case is when there is already motion
to withdraw the estafa case because according to the SOJ, there is no finding of
probable cause. However, the trial court denied the motion to withdraw the information
because according to him there is probable cause to issue warrant of arrest. In that
case, the prosecutor is being already told by the SOJ not to pursue the case, not to
prosecute. And yet the trial court does not want to dismiss the criminal case for estafa.
So the issue there is which will be followed? The SOJ ordering the prosecutor, or is it
the trial court?

S: …

AM: So let me help you. Can the prosecutor contradict the orders of his boss, the
SOJ?

S: As a rule, the SOJ has the power to reverse, modify, or affirm a resolution. Unless
there is a grave abuse of discretion on the part of SOJ. In that case, the…

AM: I will tell you the answer. The prosecutor cannot disobey his superior because that
would be insubordination of orders. So the prosecutor should follow his superior
officers, the SOJ. So the problem now is who will prosecute the criminal case for
estafa?

S: the SOJ may file.

AM: According to the SOJ, there is no probable cause. Why would he file another case
for estafa?

S: …

AM: Do you see the dilemma? The prosecutor wants to withdraw the case because his
boss the SOJ wants to withdraw the case because there is no finding of probable
cause. The problem is the trial court does not want to dismiss the case because
according to them, there is probable cause to issue an arrest. So if there is no more
prosecutor to prosecute the case, how will the criminal case before the trial court
continue?

S: The criminal case will continue upon…

AM: Anyway, thank you, Ms. Mayor. Ms. Danao? Have you read Crespo vs. Mogul?
Anyway, can the prosecutor contradict the SOJ?

S: No, sir.

AM: Of course not. If the SOJ does not find probable cause and wants to withdraw the
case, what will the prosecutor do? The prosecutor shall file a motion to withdraw
thinformation. Suppose the trial court denies the motion to withdraw the information,
what will happen now?

S: …

AM: Okay, in the case of Crespo vs. Mogul, there was a criminal case for estafa. It was
filed for preliminary investigation. The prosecutor found probable cause, so a criminal
case for estafa was filed with the trial court. When the criminal case was filed with the
trial court, the adverse party, the accused, filed a petition for review with the SOJ. In
that case, the movant filed a motion to suspend proceedings because there is a
pending petition for review. However, the trial court denied the petition filed for motion
to suspend proceedings. Subsequently, the SOJ reversed the resolution and
information because it did not find probable cause for the criminal case for estafa. So
the SOJ ordered the prosecutor to file a motion to withdraw the information for estafa.
Then the prosecutor followed. The trial court denied the motion to withdraw the
information because according to the court, there is probable cause to issue warrant
of arrest. So in that case, if the prosecutor is order to withdraw the information and the
trial court denied it, what will happen?

S: the decision of the trial court should be maintained…

AM: Who will now prosecute the criminal case if the prosecutor is ordered by the SOJ
to withdraw the information?

S: It’s still the duty of the prosecutor…

AM: Are you telling me that the prosecutor will disobey the orders of his superior?

S: Since it’s provided by the ROC that once the information has been filed in court, the
prosecution loses its authority to file for withdrawal for dismissal of a case.

AM: So the prosecutor cannot file a motion for suspension or withdrawal of the
information once it is filed with the court? Come on class this is the most important
case in Rule 112 and you did not read.

AM: Alright. So suppose there is an information file din court and then the accused
filed a petition for review with the SOJ, is that possible?

S: Yes po.

AM: Does it not contradict the ruling in Crespo vs. Mogul when the information is filed
in court, the jurisdiction is entirely with the court, not anymore with the SOJ?

S: No sir, it is not contradictory because the court may suspend the trial pending
appeal.

AM: That is precisely what the court did not do in Crespo vs. Mogul and he was
affirmed by the court, he did not suspend the proceedings. So the next question is
when a petition for review was filed with the SOJ, must the court motu proprio
suspend the proceedings?

S: The party may file for suspension…

AM: We’re not talking about the party, we’re talking about if the court motu proprio, on
its own, suspend the proceedings because there is a petition for review filed with the
SOJ?

AM: So the court will follow the SOJ?

S: Yes.

AM: Anyway, thank you Ms. Danao. Mr. Esteban? Have you read Crespo vs. Mogul?
Alright. Just to help you illustrate what is the case all about, I will illustrate. As we have
discussed earlier, it’s the prosecutor first. And then it will go up to the city/provincial
prosecutor. The afterwards, if it is approved, the information or resolution may be filed
in court. So that’s the RTC/MTC, you will file the resolution or information. Following
the same instance, the reso or information may still be reviewed by the SOJ. So this is
the dilemma that happened. An information is filed directly with the court, and the
petition for review was filed with the SOJ—two different authorities. So we are now
going to deal on how to solve the contradictory authority when there is a petition for
review. Suppose the petition for review of a reso or information is filled with the SOJ,
should the Court motu proprio dismiss/suspend the proceedings?

S: No sir. If the petition was filed before the SOJ, then the court cannot suspend the
proceedings because it is the SOJ who is the final arbiter whether there is probable
cause to continue the case or not.

AM: So, the court shall motu proprio, or shall not?

S: Shall not, sir.

AM: So even if the information is subject to the review of SOJ wherein he can review
the findings of probable cause, he will not suspend the proceedings in the trial court?

S: If the case is already filed…

AM: Yes, it’s the same. They’re filed at the same time. There is an information filed in
court, there is a petition for review filed in the SOJ.

S: The petition for review filed with the SOJ will automatically fail because according to
Crespo vs. Mogul, once the case is filed in court and is set for trial, the disposition,
acquittal, conviction, dismissal is lodged upon the exclusive jurisdiction/discretion of
the court.

AM: So it’s just a matter of who filed first? If you filed in the court first, then the petition
for review in the SOJ is useless?

S: Yes.

AM: If you file in the SOJ first, then the proceedings in the court will be suspended?

S: No sir. If you filed first with the SOJ, the case in the RTC will not proceed.

AM: So if you file first with the SOJ, you will not file a case with the RTC?

S: Yes sir.

AM: You’ll just choose one? It cannot be at the same time? That’s what’s provided in
Crespo vs. Mogul?

S: Yes sir.

AM: Okay, that is not what’s provided under Crespo vs. Mogul. According to them, the
SOJ has the interim power to review the information/reso. And then in the same
manner, when the information is filed in court, the court has exclusive jurisdiction to
determine what happens to the case. So how do you reconcile the difference in the
SOJ and the MTC/RTC? The rule is that we must give deference to the MTC/RTC. For
example, filed at the same time, same hour with both SOJ and MTC/RTC. So what
happens? As a general rule, whatever happens in the SOJ will still be subject to the
discretion of the RTC. So for example, the SOJ finds that there is no probable cause
and it wants to withdraw. The RTC will not automatically withdraw. It will be subject to
its discretion because the case is already filed with him. But it does not remove the
power of the SOJ to review the information and reso of the prosecutor. So Crespo vs.
Mogul is not a prohibitory case, it does not prohibit the SOJ to review. The only
provided ruling in the case is that it is always subject to the discretion of the court
once it is filed with him. So it depends on the judge whether to suspend proceedings
or to withdraw. If the court does not want to suspend/dismiss the complaint, then the
prosecution shall continue.

AM: Suppose the prosecutor is ordered by the SOJ to withdraw the information and
the trial court denied that motion to withdraw, what happens?

S: The trial court will continue the case.

AM: How is that possible if the prosecutor does not want to prosecute the case
anymore?

S: …

AM: According to the Supreme Court, the answer to that is very simple because the
case shall still continue despite the fact that the prosecutor does not want to continue
the prosecution of the case because the prosecutor is an officer of the court, not a
subordinate of the SOJ. So once a complaint is filed with the court, the prosecutor is
now out of the jurisdiction of the SOJ. Okay.

AM: Suppose there is an information filed in court. There is a petition for review filed in
the SOJ. Is there instance when the SOJ will automatically deny the petition for
review?

S: Yes sir, if there is probable cause for the prosecution of crime.

AM: The reason why the case was filed in the RTC/MTC is because there is probable
cause found by the prosecutor. I’m asking you whether there is an instance when an
information is filed in court, and an instance when the petition for review is filed in the
SOJ, and the SOJ will automatically deny the petition for review.

S: …

AM: Alright, class. According to the book of Riano and the manual of prosecutors, the
SOJ has discretion to review the reso/information. However, there is one instance
when the petition for review is automatically denied. And that is when there is already
an arraignment of the accused. Because when there is already arraignment of the
accused before the court, it means that the entire jurisdiction is already with the trial
court. But that rule has been amended by the case of De Lima vs. Reyes. What is the
case of De Lima vs. Reyes?

S: …

AM: Alright. Thank you, Mr. Esteban. Ms. Sanchez? Case of De Lima vs. Reyes?

S: …

AM: Okay, I’ll give you the facts. Do you know who is De Lima and Reyes?

S: Yes po.

AM: Reyes is the mayor of a particular city of Palawan. Why do you think was he
indicted by De Lima?

S: Because of his crime of murder of Doctor…

AM: Yes. Mario Reyes and his brother Mario Reyes was charged with the gruesome
killing of Dr. Ortega in Palawan. Do you know that incident? No? Anyway. Initially, there
was a panel of prosecutors constituted to determine probable cause whether brothers
Reyes committed the crime of murder. According to the first panel of prosecutors,
there is not finding of probable cause to indict the Reyeses. So De Lima, before a
petition for review was filed, instituted a second panel of prosecutors. The second
panel of prosecutors found probable cause. So when they found probable cause, they
filed information in court. The problem is when the second panel of prosecutors found
probable cause, the respondent Mario Reyes filed a petition for certiorari with the
Court of Appeals, because according to him, the second panel of prosecutors was
constituted with gave abuse of discretion. What was the ruling of the court?

S: The petition for certiorari shall be…

AM: There are two issues in this case. First, can the SOJ order the reinvestigation even
if a petition for review was not yet filed? Second, whether the CA can entertain the
petition for review questioning the finding of probable cause by the panel of
prosecutors?

S: As a general rule, the findings of the SOJ are not subject to questioning or for
review. However, there is an exception. When they find that there is grave abuse of
discretion amounting to lack or excess of jurisdiction, the CA can entertain the petition
for review.

AM: And then? How about the second issue, whether the SOJ can make the second
panel of prosecutors or investigation even without a petition for review?

S: No, they cannot make a second panel of prosecutors.

AM: You will make a very good defense counsel of Mario Reyes but in that case, Mario
Reyes was defeated. Why do you think so?

S: …

AM: Anyway, in the case, class, one of central issues is whether the CA can entertain
petition for certiorari questioning the findings of probable cause. As a general rule, it
can. But in this case, it was a very peculiar case because according to Justice Leonen,
once the court receives the information and finds probable cause, and issues warrant
of arrest, the other courts are now without jurisdiction to entertain any questions
regarding the finding of probable cause of the prosecutors. So again, once a warrant
of arrest has been issued, the finding of probable cause by the prosecutors cannot
anymore be questioned. This is contradictory to what I have stated earlier in the
manual of prosecutors. Because in the manual of prosecutors, the finding of probable
cause by a prosecutor can only be denied when there is arraignment. But in this case,
even with the issuance of a warrant of arrest, the finding of probable cause of the
prosecutor is now valid and cannot anymore be questioned. So there is now an issue
whether of these ruling of Justice Leonen modified the manual of prosecutors. Does it
mean that when there is a warrant of arrest, you cannot anymore file a petition for
review with the SOJ? That is an interesting question and it will be asked in the Bar
exams. But so far, that is the standing jurisprudence. De Lima vs. Reyes: That when
there is warrant of arrest, you cannot anymore question the finding of probable cause.
There are many practitioners that do not agree with this ruling, of course, because that
is against their client.

AM: How about the second issue? Can the SOJ order reinvestigation without a petition
for review?

S: Yes, the SOJ can order reinvestigation without petition for review. According to the
law, the SOJ has the power to investigate the proceedings on their own and their
failure to exercise such power or authority will result to an abdication of justice on their
part.

AM: Yes. Again, this is another new addition. According to De Lima vs. Reyes, the SOJ
can review a preliminary investigation without petition for review. That is a new
doctrine. Because according to him, the SOJ has jurisdiction over all the acts of his or
her prosecutors. Thank you Ms. Sanchez.

AM: Mr. Austria? Suppose that the SOJ renders a decision on the petition for review.
Can the decision of the SOJ be subject to further review? So, appeal. Can it be
appealed further?

S: To the office of the President.

AM: Office of the President? That’s it?

S: …

AM: As you will see later on class, the remedies with respect to preliminary
investigation is very very problematic.

AM: The Office of the President can review the findings of the SOJ provided that it is
only limited when the penalty prescribed is only death, RP, LI. Suppose the OP renders
a decision, can it still be appealed?

S: …

AM: it can actually still be appealed, not to the SC, but to the CA also under Rule 43.
So you can see here that the judgment son the SOJ can be appealed to the Office of
the President, again, appealed to the CA, and then the decision of SOJ can still be
filed with Rule 65 to the CA. So very problematic. In this aspect is merely the finding
of probable cause with the prosecutor. So this is the prosecutor’s side. Then we have
the judge side, which is the judicial determination of probable cause. So later on we
will discuss the remedies for a judicial determination of probable cause, which is also
quite problematic.

AM: So let’s go to the tenth step. What is the 10th step?

S: Once the prosecutor affirms the information, it is filed in the court who has
jurisdiction. If the accused is not detained, there shall be issued a warrant of arrest, if
the judge finds probable cause. If the accused is already under jurisdiction of the
police, the commitment order is issued. If there is n probable cause, the accused shall
be released.

AM: So when the information is filed in court, the duty of the court is to judicially
determine existence of probable cause. Aside from the information, what other
documents are filed together with the information?

S: The resolution.

AM: That’s it?

S: The affidavits of the complainant, and the…

AM: How about the writings of the preliminary investigation?

S: Yes.

AM: Class, what is filed in the court is not merely the information. You file the
information, the resolution, the affidavits, attachments, but NOT the records of the
preliminary investigation. That is the only document not filed with the court together
with the information. So when an information is filed in Court, what are the options of
the court?

S: …

AM: May the court solely rely on the information in determining existence of probable
cause?

S: yes sir, if the accused did not submit counter-affidavit.

AM: No, that is not what is provided in the law. The judge must independently
determine the existence of probable cause before issuing warrant of arrest. He cannot
solely rely on the information or resolution of the court. Otherwise, he will be a mere
puppet of the prosecutor. He must have an independent finding of probable cause to
issue warrant of arrest. That’s the reason why probable cause issued by the
prosecutor is different from the probable cause of the judge. Alright, thank you Mr.
Austria.

AM: Mr. Hernandez? Suppose the judge is not issuing a warrant of arrest. Can the
parties file a motion for judicial determination of probable cause?

S: …

AM: I will tell you a story. Surprisingly it’s about De Lima again. So De Lima was
charged with the crime of illegal sale of drugs inside the prison. So the issue there is it
was filed in the DOJ, and then it was filed with RTC. According to De Lima, it should
have been filed with the Sandiganbayan because it involves her office. So what
happened is that De Lima filed a petition for certiorari with the SC. According to one
justice, you filed the wrong remedy because you should have questioned the finding pf
probable cause by the RTC and the prosecutor. So you should have filed a motion for
determination of probable cause. Is that justice correct?

S: Yes po, the petition for certiorari is not the proper remedy.

AM:With all due respect to that justice, that is not the correct action filed because
we’re not talking about the petition for certiorari, we’re talking about the motion for
judicial determination of probable cause.



S: …

AM: I’ll tell you the answer. There is no such thing as motion for judicial determination
of probable cause. Now the follow up question is why?

S: Because the determination of probable cause is already final.

AM: No. Because the the court issues a warrant of arrest, it already implies there that
he or she had judicially determined the existence of probable cause. So it is not a
separate and independent proceeding. The mere issue as to the warrant of arrest itself
embodies the findings of probable cause by the judge. Question. When the judge is
asked to determine probable cause to determine probable cause, is the judge required
to conduct searching question to the witnesses and complainant?

S: No.

AM: What is the counterpart of a warrant of arrest? Search warrant. In search warrant,
is searching questions required? Yes. Searching questions from the complainants and
his witnesses are required in search warrant. But why is it that it is not required in
warrant of arrest determine probable cause?

S: …

AM: Thank you. Mr. Hernandez. Ms. Lescano?

AM: When the prosecutor determines probable cause, he issues a resolution and
information. In the resolution he states his findings: finings of law and finding of facts
and then determine probable cause. How about a judge? Does the judge issue a
resolution or order explaining why he found probable cause to issue warrant of arrest?

S: The judge issues an order.

AM: So issues an order, does the judge explain the finds of facts and law?

S: Yes po.

AM: In petitions for bail, the judge is required to explain thoroughly why the evidence is
not strong. In warrants of arrest, when the judge issues a warrant of arrest, is the judge
required to explain why he found probable cause in issuing a warrant?

S: No po.

AM: Can the accused question the finding of probable cause of the prosecutor before
the courts?

S: yes po. The accused can question finding of probable cause.

AM: Except when a warrant of arrest has been issued. Okay, supposed the preliminary
investigation was conducted but the accused was not allowed to file counter-affidavits
and the information was eventually filed in court. Can the accused question the
irregularity of the preliminary investigation before the court?

S: No po.

AM: The answer is yes. What happens now?

S: The accused should be given the chance to file his own…

AM: So the case will be dismissed?

S: Yes po.

AM: No. It will be remanded to the prosecutor for reinvestigation. Okay suppose a
preliminary investigation was not conducted at all and an information was filed in
court, may the accused move for the dismissal of the cased based on lack of
jurisdiction?

S: …

AM: According to the Rules of Court, you are required to conduct a preliminary
investigation when the offense penalty is 4Y2M1D. Suppose it is 4Y2M1D, but no
preliminary investigation was conducted—direct filing with the court. Is that a violation
of the jurisdiction of the court?

S: No po, sir.

AM. Still no? Okay thank you Ms. Lescano. Ms. Malabanan? The ROC continually
mentions the word reinvestigation. What is reinvestigation?

S: It is when there is no finding of probable cause that the judge desires to further to
determine whether there is probable cause, he will require additional submission of
documents…

AM: So when the judge wants to satisfy further the finding of probable cause, the
judge will conduct reinvestigation?

S: Yes.

AM: I’ll tell you that reinvestigation is not conducted by the judge, but by the
prosecutor. So what is reinvestigation by the prosecution? The reinvestigation is the
conduct of a second preliminary investigation. It simply means a second or third
preliminary investigation.

AM: Next question. When does the ROC require a reinvestigation?

S: When…

AM: Two instances. What’s the first?

S: …

AM: The first instance is written on the board.

S: If the prosecutor recommended denial of probable cause but the… if the

investigating prosecutor recommended the denial of complaint but such
recommendation is denied by the judge.

AM:In preliminary investigation, we’re not yet concerned with the judge. Come on,
that’s the 8th step. The 8th step consist when the information/resolution is provided
with the city/provincial prosecutor, and he, instead of affirming or reversing it, orders
reinvestigation. So in that instance, the boss or chief prosecutor can order
reinvestigation. Can the SOJ order reinvestigation?

S: He can do his own assessment of finding probable cause,

AM: The answer to that is found again in the case of De Lima vs. Reyes. In that case,
Sec. De Lima ordered the reinvestigation motu proprio. That’s how powerful the SOJ
is. He can order another preliminary investigation based on his own discretion. Unlike
in the case of the city/provincial prosecutor. How about the court, can the court order
reinvestigation?

S: The court is duty bound to make his own independent assessment po.

AM: the answer to that has been stated by your classmate. The answer to that is yes,
when there is irregularity in the conduct of preliminary investigation. The other instance
is when there has been substitution of the information, because in that case, there is a
new crime committed. New crime charged. So those are the instances when there is
reinvestigation. Thank you Ms. Malabanan.

AM: Alright class, let me finish just this one. So according to my discussions earlier,
when there is preliminary investigation, it can be filed with the court, and the
information or resolution can be reviewed by the SOJ. That is not violative of anything,
that is actually allowed. What is prohibited is that the SOJ will order the court. The SOJ
cannot order the court. Any orders of the SOJ will be subject to the discretion of the
court. That’s the rule, that’s Crespo vs. Mogul. The findings of the SOJ can be subject
to two reviews: first one is Rule 65 with CA, when there is grave abuse of discretion.
The other one is with the Office of the President when the penalty for the crime
committed is death, rp, li, and the decision of the Office of the President is also
subject to the appeal to the CA under Rule 43. How about the finding of probable
cause for issuance of warrant of arrest by the trial court? Is it subject to review? The
answer to that is there is limited subject of review through the CA under Rule 65.

AM: So next meeting, we’re still in Rule 112…

—end of transcript—