CHAPTER 03: THE PROSECUTION PILLAR

I. LEARNING OUTCOME:
At the end of the chapter, the students will be able to:
1. Understand the nature of office of a prosecutor and its role in the Criminal
Justice System.
2. Identify the Component of Prosecution and their duties and functions.
3.Appreciate the importance of preliminary investigation.

II. LESSON CONTENT:

Topic 1: Prosecution: An Overview
Topic 2: The Prosecutor
Topic 3: The Preliminary Investigation

III. LESSON PROPER

TOPIC 01: PROSECUTION: An Overview

● The origin of the office of the prosecutor is found hundreds of years ago in
the jurisprudential development and the common law of England.

● The general term ​attornatus was used in England official documents in the
Middle Ages to mean anyone who appeared for another as a pleader,
attorney, or essoiner.

● The earliest laws of England defined crimes as being committed against a

particular individual, not against the state. The original prosecutor was a
victim or an individual representing a victim who stepped forward personally to
initiate the prosecution of the alleged offender.

●Originally all crimes were torts; thus, in early common law, any injury,
whether to person or property, was a tort. (A tort today is an injury to an
individual that is not an offense against the state).
Later, the injury was considered an offense against the state.

● During the reign of Edward IV (1461-1483), William Husse was appointed

attorney general of England.

● Henry VIII (1509-1547) eliminated the vengeance prosecution system and

in its stead provided a system of “sergeants”, who were required to act as
police prosecutors and to enforce penal statutes. These sergeants were later
to become well trained in the law.

PROSECUTION DEFINED
 Within the Philippine legal context, the prosecution plays a crucial role in the
administration of criminal justice because it occupies a central and very important
position between police and the court.

Prosecution Refers to the either the process in the criminal justice system or a party
in a criminal proceeding. It is the course of action or process whereby accusations
are bought before a court of justice to determine the innocence or guilt. In criminal
action, it is a proceeding instituted and carried on by due course of law, before a
competent tribunal, for the purpose of determining the guilt or innocence of a person
charged with a crime.
The party in criminal proceeding who instituted the criminal action is called the
prosecution. The party against whom the criminal action was instituted is called
defense. • In all criminal prosecutions, the real offended party is the people of the
Philippines, for a crime is an outrage against, and its vindication is in favor, of the
people in sovereign state. Thus, all criminal cases are titled “People of the
Philippines vs. __________ (the name of the accused.)

Serving as the lawyer of the State/government in criminal cases, the

prosecutor is automatically considered an officer of the court; at the same time, he is
formally a member of the Department of Justice, under the Executive branch of the
Government, and thus independent from the judiciary.

-The prosecution service is made up of Provincial and City Public Prosecutors

under the National Prosecution Service (NPS). They perform to types of
prosecutorial powers; investigatory and prosecutory such as:

● They evaluate the police findings referred to them, or other

complaints filed directly with them by individual persons (e.g., government
officers in charge of enforcement of law violated);
● They file corresponding INFORMATION OR CRIMINAL
COMPLAINTS in the proper courts on the basis of their evaluation of the
proofs at hand; and
● They prosecute the alleged offenders in court, in the name of the
People of the Philippines.

TOPIC 02: THE PROSECUTOR

WHO IS A PROSECUTOR?

 A public officer having an authority to conduct legal actions concerning the

complaints filed at his office and perform other prosecution functions (legal
proceeding against any person) as provided by law.
 The prosecutor is not just an ordinary official of the government; he is an
officer of the court whose criminal responsibility under the law is to carry out
the administration of the CJS thru an adequate examination of the offense
charged and to decide whether or not to prosecute a person without
sacrificing fairness and justice.

 The prosecutor is not just an ordinary official of the government; he is, as well
an officer of the court whose criminal responsibility under the law is to carry
out the administration of the criminal justice system through an adequate
examination of the offense charged and to decide whether or not to prosecute
the individual offender, without sacrificing fairness and justice.

He is formally a member of the Department of Justice, under the Executive

Branch of the government, and thus independent from the judiciary. He
serves as a direct contact between the government, through the police
agency and the court of justice, and the criminals and the attorneys
representing them. His series of contact is made from the moment he
receives the case to the criminal proceedings and even until up to the final
disposition of that case in the trial government he represents.

THE PROSECUTOR AND THE POLICE

1. Prosecutorial discretion typically enters the picture immediately after the

arrest, when the police investigative reports are forwarded to the prosecutor
for review.

2. The prosecutor screens and evaluates the document in order to decide

whether to accept or reject the case for prosecution.

3. The action of the prosecution is dependent upon the police initiatory action,
whereby the criminal justice system relies on the:
a) certainty of the arrest by the police.
b) certainty of conviction by an effective prosecution.
c) certainty of appropriate sentencing by the court.

PROSECUTORIAL BODIES/OFFICES
1. Office of the City or Provincial Prosecutors
2. State Prosecutors under the National Prosecution Service (PD
1275)
3. Office of the Special Prosecutor
4. Office of the Ombudsman
5. Judge Advocates General’s Office of the Military

FUNCTIONS OF THE CITY OR PROVINCIAL PROSECUTORS

A. Be the law officer of the province or city, as the case may be. He shall have
charge of the prosecution of all crimes, misdemeanors and violations of city or
municipal ordinances in the courts of such province or city and shall therein
discharge all the duties incident to the institution of criminal prosecutions;

B. Investigate and/or cause to be investigated all charges of crimes,

misdemeanors and violations of all penal laws and ordinances within their
respective jurisdictions and have the necessary information or complaint
prepared or made against the persons accused. In the conduct of such
investigations, he or his assistants shall receive the sworn statements or take
oral evidence of witnesses summoned by subpoena for the purpose;

C. Investigate commissions of criminal acts and take an active part in the

gathering of relevant evidence. For this purpose, the National Bureau of
Investigation, Philippine National Police and other offices and agencies of the
government shall extend to him the necessary assistance;

D. Act as legal adviser of the municipality, and municipal district of the

provinces or the provincial or city government and its officers or of the city. As
such, he shall, when so requested, submit his opinion in writing upon any
legal question submitted to him by any such officer or body pertinent to the
duties thereof; and

E. Assist the Solicitor General, when so deputized in the public interest, in the
performance of any function or in the discharge of any duty incumbent upon
the latter, within the territorial jurisdiction of the former, in which cases, he
shall be under the control and supervision of the Solicitor General with regard
to the conduct of the proceedings assigned to him and render reports thereon

NATIONAL PROSECUTION SERVICE

-operates under the supervision and control of the Secretary of Justice. Its
principal mandate is to conduct speedy and efficient investigation and
prosecution and of criminal cases.

CHIEF STATE PROSECUTOR- head of the NPS

ASSISTANT CHIEF STATE PROSECUTORS- (5)- have over sights over the
divisions of the NPS, namely, Inquest and Special Concerns, Preliminary
Investigation and Prosecution, Review and Appeals, Administrative,
Personnel Development, and Support Service; and Disciplinary, Field
Operations And Special Concerns.

Composition of the National Prosecution Service

a. Chief State Prosecutor, (Secretary of Justice and their Assistance)

b. Five (5) Assistant Chief State Prosecutors;
c. Thirteen (13) Regional State Prosecutors;
d. Sixty-nine (69) City Prosecutors;
e. Seventy-seven (77) Provincial Prosecutors;
f. One hundred nineteen (119) State Prosecutors;
g. One thousand eight hundred sixty-three (1,863) Assistant City and
Provincial Prosecutors; and
h. Fifty-two (52) prosecuting Attorneys.

The office of the Chief State Prosecutor is composed of the following

division, to wit:

a. Review and Appeals;

b. Administrative Discipline and Legislative Affairs;
c. Preliminary Investigation and Prosecution of cases;
d. Personnel Development, Recruitment and Support Services;
and
e. Inquest and Special Concerns Division.

FUNCTIONS OF THE REGIONAL STATE PROSECUTORS

(a) Implement policies, plans, programs, memoranda, orders, circulars and

rules and regulations of the Department of Justice relative to the investigation
and prosecution of criminal cases in his region.

(b) Exercise immediate administrative supervision over all provincial and city
fiscals and other prosecuting officers of provinces and cities comprised within
his region.

(c) Prosecute any case arising within the region.

(d) With respect to his regional office and the offices of the provincial and city
fiscals within his region, he shall:

1. Appoint such member of subordinate officers and employees as may be

necessary; and approve transfers of subordinate personnel within the
jurisdiction of the regional office.

2. Investigate administrative complaints against fiscals and other prosecuting

officers within his region and submit his recommendation thereon to the
Secretary of Justice who shall, after review thereof, submit the appropriate
recommendation to the Office of the President: Provided, that where the
Secretary of Justice finds insufficient grounds for the filing of charges, he may
render a decision of dismissal thereof.

3. Investigate administrative complaints against subordinate personnel of the

region and submit his recommendations thereon to the Secretary of Justice
who shall have the authority to render decision thereon.
 4. Approve requests for sick, vacation and maternity leaves of absence with or
without pay, for a period not exceeding one year; for overtime services; for
permission to exercise their profession or to engage in business outside of
office hours; for official travel within the region for periods not exceeding thirty
days; and for benefits under Sec. 699 of the Revised Administrative Code.

5. Prepare the budget for the region for approval of the Secretary of Justice
and administer the same.

6. Negotiate and conclude for services or for furnishing supplies, materials

and equipment for amount not exceeding P50,000.00 for each quarter.

(e) Coordinate with regional offices of other departments, with

bureaus/agencies under the Department of Justice, and with local
governments and police units in the region.

USE OF THE PROSECUTOR’S DISCRETION

There are, of course, many legitimate reasons for a prosecutor's failure to

prosecute:
a. Where the alleged criminal act may be the result of some quarrel between
neighbors and all parties are equally at fault;
b. Where the alleged criminal act may be the result of some minor domestic
dispute;
c. Where an overzealous creditor may be attempting to prevent the criminal
process for the purpose of collecting a civil debt.

Prosecutors, indeed, use their discretion in a variety of ways when they

decide whether to bring formal charges against individuals suspected of
crimes.

However, some uses the discretion to -

a. Screen suspects out of the criminal justice system;
b. To bargain for information an guilty pleas: and
c. To prosecute some defendants fully

What is Nolle (Nolle Prosequi)?

By definition, a NOLLE is a request made by the prosecutor to the

judge approval to terminate further criminal prosecution against a suspect.

Its characteristics are:

1. The request is a mere formality that the judge routinely grants without
question.
2. Originally, the prosecutor is not even required to give reason for wanting to
nolle a case.

Technically, a suspect whose case is nolle has the charge suspended for
a period of twelve (12) months.
3. The suspension of legal action is intended to have a deterrent effect on the
offender if the suspect gets into trouble during the period.
4. At the end of 12 months, the nolle status expires and automatically becomes
a full dismissal of the crime charge.

Objectively, the nolle is primarily used to:

1. Reduce case overload;

2. Reduce back-log; and
3. Reduce delays in bringing defendants to trial. The most controversial
expression of prosecutorial discretion is the decision to mitigate the
defendant's sentence through:
 Reducing the charge.
 Dropping multiple courts to leave a single criminal charge; and
 Recommending leniency to the court at sentencing concurrent prison
sentences.

Reduce charges are those less serious and less severely punishable crimes:
the prosecutor may reduce the charge from armed to unarmed robbery; from
murder to the arraignment or even after trial has begun if the defendant to
plead guilty to the reduced charge.

Dropping multiple counts means that a prosecutor has the discretion to

drop multiple criminal counts and to charge the defendant instead with only a
single crime, a crime which may or may not be the most to serious crime
involved. To assure less severe sentence, the prosecutor will ordinarily drop
all counts except the one to which the defendant agrees to plead guilty and be
sentenced on.

Recommending leniency means that the prosecutor, during the sentencing

process, recommend leniency in sentencing or the imposition of concurrent
charges. In the concurrent prison sentence, the separately imposed prison
terms for each count are not added together but allowed to run at the same
time. Thus, the full sentence imposed is the longest single prison term, usually
for the most serious crime. In either case, he forwards the record of the case
to the Provincial or City Prosecutor of Chief State Prosecutor within five (5)
days from his resolution. On the other hand, the Provincial and City
Prosecutor shall take appropriate action from receipt thereof; immediately
informing the parties of said action. No complaint or information may be filed
or dismissed by the investigating prosecutor without prior written authority or
approval of the Provincial or City Prosecutor or Chief Prosecutor.

If the findings of the investigating prosecutor warrant the dismissal of the of

the case, but such was reversed by the Provincial or City Prosecutor or Chief
State Prosecutor on the ground that probable cause exists, the latter may by
himself, file the corresponding information against the respondent or direct the
assistant prosecutor to do so:
 PLEA BARGAINING
Plea bargaining is the process of discussion or negotiation between the
defense counsel and the prosecutor, aimed at reaching an agreement
whereby the prosecutor uses discretion to obtain from the judge a lighter
sentence in exchange for the defendant’s entering a guilty plea.

TOPIC 03: PRELIMINARY INVESTIGATION

Preliminary Investigation – is an inquiry or proceeding to determine whether there

is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for trial.
(Section 1. Rule 112-Rules of Court)
-is the stage at which the public prosecutor evaluates the finding of the police
or the evidence submitted directly by a complainant or public officer in charge of the
enforcement of the law alleged to have been violated, to determine if prosecution of
the suspect in court is warranted.
- is an important substantive right of persons suspected of crimes, the
deprivation of which is tantamount to a deprivation of due process of law. It is
designed against hasty and malicious prosecutions.

Except as provided in section 7 of this Rule, a preliminary investigation is

required to be conducted before the filing of a complaint or information for an offense
where the penalty prescribed by law is At least four (4) years, two (2) months and
one (1) day without regard to fine. (1a)

Officers authorized to conduct Preliminary Investigation:

a. Provincial or City Prosecutors (fiscals) and their assistants;

b. National and Regional State Prosecutor;
c. Other officers as may be authorized by law.

The “other officers as may be authorized by law” includes the following:

a. The chief legal officer of the commission on Elections as well as those
deputized by the latter in connection with the preliminary investigation and
prosecution of election offences;
b. The Ombudsman;
c. Special prosecutor; and
d. Prosecutors duly authorized by the Ombudsman to do so in connection with
offenses cognizable by the Sandiganbayan.

Purpose of preliminary investigation

Generally, preliminary investigation has a three-fold purpose:
1. To inquire concerning the commission of crime and the connection of accused
with it, in order that he may be informed of the nature and character to the
crime charged against him, and if there is probable cause for believing him
guilty, that the state may take the necessary steps to bring him to trial;
2. To preserve the evidence and keep the witnesses within the control of the
state; and
3. To determine the amount of bail, if the offense is bail able

The principal purpose of a preliminary investigation is to determine whether a

crime has been committed and whether there is a probable cause to believe
that the accused is guilty thereof. It is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and
public accusation of a crime, form the trouble, expense, anxiety of a public
trial, and also to protect the state from useless and expensive trials.

HOW PRELIMINARY INVESTIGATION IS CONDUCTED?

The procedures in the conduct of a preliminary investigation are as follows:

(1) Filing of complaint and affidavits of witnesses by the police, complainant or

public officer in charge of the enforcement of the law alleged to have been
violated;

(2) Personal examination of affiants by the investigating prosecutor;

(3) Preliminary action by investigating prosecutor:

• Dismiss the complaint if he finds no cause to continue with the inquiry.
• Issue subpoena to respondent requiring him to submit a counter affidavit.
However, if no such counter-affidavit is submitted, the investigating prosecutor
shall resolve the case on the basis of the evidence submitted by the police,
public officer or complainant. If a counter-affidavit is submitted but there are
matters which need clarification, the investigating prosecutor may set a
hearing to propound clarificatory questions.

(4) Preparation of resolution. Based on the evidence presented, the

investigating prosecutor may:
• Prepare information if he finds cause to hold the respondent for trial. An
information is an accusation in writing charging a person with an offense
subscribed by the fiscal and filed with the court.
 • Otherwise, recommend the dismissal of the complaint. However, in both
cases, the approval of the Provincial or City Prosecutor or the Chief State
Prosecutor of such recommendation is necessary.

INQUEST PROCEDURE

-defined as an informal and summary investigation conducted by a

public prosecutor in criminal cases involving persons arrested and detained
without the benefit of a warrant of arrest issued by the court. The inquest
serves to determine whether said persons should remain under custody and
correspondingly be charged in court.
- Inquest proceedings shall only proceed when the arrested or detained
person doeS not opt for a preliminary investigation or otherwise refuses to
execute I the required waiver.
- Any person under inquest as defined in Section 1 hereof shall have
the right to remain silent and to refuse to answer any question propounded to
him/her. In addition, he/she shall have the right to consult and 8 1 2 3 4 5 6
confer with a lawyer preferably of his/her own choice. In the event that said
person cannot afford to hire a counsel, one shall be appointed to assist
him/her.
-The inquest proceedings shall be considered commenced upon
receipt by the Inquest Officer from the law enforcement authorities of the
complaint/referral documents which shall include: a) the affidavit of arrest; b)
the investigation report; c) the statement of the complaint and witnesses; and
d) the supporting evidence gathered by the police according to law in the
course of the latter’s investigation of the criminal incident involving the
arrested or detained person.

COMPLAINTS DISTINGUISED FROM INFORMATION

Basis of Complaints Information

Compariso
n
1. Who may  The offender parties.  Prosecutor
file  Any peace officers.
 Any public officer charged with the
enforcement of the law violent
2. Where to  To the prosecutor office. To the court
file  Directly to the court.

Validity  It must be charging an offense. It need

 It must be under oath. not be under
oath

COMPLAINT vs. INFORMATION

1. A complaint is sworn statement; an information need not to sworn to;
2. A complaint is subscribed by the offended party, any peace officer or public
officer charged with the enforcement of law; while on the other hand,
information is subscribed by the prosecutor.
3. A complaint may be filed to the court or to the prosecutor’s office; while
information is filed to the court.

SUFFICIENCY OF A COMPLAINT OR INFORMATION

A complaint or information is sufficient if:

1. It states the name of accused.
2. It designated the offense of the statute.
3. It states the acts or omissions complained of which constitutes the offense.
4. It states the name of the offended party.
5. It states the approximate time or place of the commission of the offense; and
6. When an offense is committed by more than one person, all of them shall be
included the complaint or information.

IV. LEARNING ASSESSMENT

CHAPTER QUIZ

V. REFERENCES:
● Banks, C. (2009). Criminal justice ethics: theory and practice. (2nd​ ed.)​
Los Angeles: SAGE.
● Cano, G. J., Amante, D.A., Fernandez, N.M. (2010) ​Philippine criminal
​ ​justice system. Manila: Mindshapers.
● Timpac, T., Handbook on Philippine Criminal Justice System, RMC
Publishing Haus, Tarlac City Philippines, 2011
● Domingo, S., Criminal Justice System, Rex Book Store, Manila, Philippines