Reasonable certainty of conviction

Recently the Department of Justice issued Department Circular 20 dated March 31, 2023, directing all prosecutors of the National Prosecution Service to conduct preliminary investigation for the sole purpose of determining “whether a crime has been committed and whether there is a prima facie case against respondent [suspected offender] and a reasonable certainty of [his or her] conviction…”

The role of the prosecutors as mandated by the Circular extends to the case build-up stage where they may assist or cooperate with the complainants and/or law enforcement agencies.

This is consistent with the DOJ’s policy of “pro-active involvement in the investigation of crimes” to promote the efficient and effective administration of justice.

It must be noted, however, that the Circular applies only to heinous crimes such as, but not limited to, treason, piracy and qualified piracy, qualified bribery, parricide, murder, infanticide, kidnapping and serious illegal detention, robbery with violence against and intimidation of persons, destructive arson, rape, plunder, and carnapping (Section 3).

It also applies to all violations of the (a) Dangerous Drugs Act, as amended; (b) Anti-Money Laundering Act of 2001, as amended; (c) Anti-Terrorism Act of 2020; (d) Terrorism Financing Prevention and Suppression Act of 2012; and (e) all crimes punishable by reclusion perpetua or life imprisonment (Section 3).

Hence, the preliminary investigation required to be conducted before the filing of a complaint or information in court under Rule 112, Section 1 of the Rules of Criminal Procedure will continue to apply for offenses “where the penalty prescribed by law is at least four years two months and one day without regard to the fine.”

As originally defined, a “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 Criminal Procedure).

Preliminary investigation is the determination of the existence of probable cause by the executive department.

With the issuance of Department Circular 20, there is now a difference between the quantum of proof required for the preliminary investigation of heinous crimes and offenses of the same category versus ordinary offenses.

For the former, prima facie evidence and reasonable certainty of conviction is required.

Prima facie evidence is “such status of evidence which on its own and if left uncontroverted, is sufficient to establish all the elements of a crime.”

It is the duty of the prosecutor to determine based on available documents, witnesses, or real evidence if prima facie evidence exists for the filing of a complaint or information in court (Section 2).

While some may raise an issue about the DOJ’s introduction of a new quantum of proof for preliminary investigation in certain offenses, this author opines that the wordings of the Circular were carefully crafted to appear as a policy mandate rather than a rule of procedure. By doing so, the DOJ did not violate the Constitution nor can it be said to have over-steeped the boundaries of its executive jurisdiction (see Section 5, Article VIII, Philippine Constitution).

For ordinary offenses requiring preliminary investigation, the probable cause under the Rules of Criminal Procedure will continue to apply as the measure or quantum of proof. Otherwise stated, once the Office of the Prosecutor determines the existence of probable cause, the criminal complaint or information must be filed in court.

To achieve the objectives under the Circular, “all heads of prosecution offices shall ensure that all prosecutors within their respective offices shall… be available to assist, coordinate and cooperate with, and provide sufficient legal guidance to law enforcement agencies (LEA) in all planned operations,… from their inception until successful termination of the case” (Section 4).

The “[p]rosecutors shall be available at any hour of the day or night, even remotely via available telecommunications technology, for purposes of consultation, cooperation and coordination on matters involving proper collection and preservation of evidence, such as but not limited to interviewing of witnesses, preparation of Judicial Affidavits, and vetting of evidence” (Section 4).

“Criminal complaints received by prosecution offices from private individuals, as well as formal referrals for investigation from LEAs involving crimes covered [by the Circular]… shall, within 10 working days from receipt, be evaluated to determine if they contain all the necessary evidence to prove the essential elements of the crime and should be docketed for preliminary investigation” (Section 5).

“Should the evaluation disclose that the complaint or referral contains all the necessary evidence to prove all the essential elements of the crime, the assisting prosecutor who conducted the evaluation shall certify that there is a sufficient ground to conduct preliminary investigation… [and] shall then be docketed for the conduct of preliminary investigation…” (Section 5).

“In all cases for preliminary investigation, the investigating prosecutor shall issue a Certification as to the existence of prima facie case and of a reasonable certainty of conviction… However, should the evaluation result in a finding that the complaint is not supported by sufficient evidence, or that there are lacking pieces of evidence, the complaint shall be referred back to the private complainant or the referring LEA…” (Section 5).

The referral endorsement must state the following: “(1) a report on the result of the evaluation; (2) an advice about the lacking evidence; and (3) a directive to secure and submit the said lacking evidence/s.”

If the evidence remains to be insufficient or pieces of evidence cannot be located within a reasonable period from its referral, the case shall be closed and terminated without prejudice to refiling (see Section 5).

For warrantless arrests (respondent is arrested while committing, about to commit or has just committed the offense) requiring inquest proceedings, “the docket/records section of the office shall immediately refer the complaint and other required documents such as the investigation form, referral letter, complaint-affidavits or arrest… to the assisting prosecutors [concerned]…” (Section 6).

The assisting prosecutors shall immediately render assistance and evaluate the records. “If the documents contain all the necessary evidence to prove the essential elements of the crime, they shall certify that there is sufficient ground to conduct inquest proceedings… [and] shall [be] submitted to the head of office… for approval for inquest” (Section 6).

If an inquest prosecutor after evaluation of the complaint and the records determines that not all the evidence necessary to prove the essential elements of the crime are present, or the suspect/s are not taken into custody within the period allowed by law, the assisting prosecutor shall make a recommendation to the head of office for the conduct of regular case build up and, if warranted, a preliminary investigation (see Section 6).

The prosecution office must continue to assist and coordinate with the relevant LEA to build-up the case and ensure the successful prosecution of the same. In all inquest proceedings covered by the Circular, “prosecution offices must ensure that all important pieces of evidence are submitted by the LEA to make sure that no suspect… lawfully arrested without [a] warrant shall be released for further investigation” (Section 6).

The proper implementation of Department Circular 20 will deter the filing of criminal cases in court which are: (a) poorly and hastily evaluated; (b) lacking in evidence; and (c) intended to persecute rather than to prosecute. Conversely, it may promote the use of plea bargaining or plea of guilty to a lesser offense if the accused is convinced that he or she can be convicted eventually.