I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
A criminal investigation is a fact-finding inquiry conducted by the police and consists of gathering and assessing evidence and interviewing witnesses to find out it a complaint should be filed for the purpose of conducting a preliminary investigation.
A preliminary investigation is an executive function. Its purpose is to determine if there is probable cause to hold an offender for trial for the crime that was imputed to him (Dupasquier vs. CA, GR 112089, January 24, 2001.) It is done by the prosecutor. It is required when the penalty prescribed by law is at least 4 years, 2 months and 1 day, regardless of the fine. If the penalty is a fine only, it's not required if the fine isn't more than Php1,000.
The rationale of a preliminary investigation is to protect the accused from the hassles of defending himself in a formal trial unless reasonable probability of his guilt came out in a fair summary proceeding done by a competent office (Tandoc vs. Resultan, 175 SCRA 37.) By nature, it is a personal right and may be waived expressly or impliedly (People vs. Lazo, 180 SCRA 274.) If the right isn't waived, the lack of a preliminary investigation can violate the accused's right to due process (Villaflor vs. Gozon, 134744, January 16, 2001.) Note, however: if there is no preliminary investigation, the information filed will still be valid and won't be considered defective. Also, the jurisdiction of the court won't be affected and it won't be a ground for a motion to quash the information (People vs. Deang, GR 128045, August 24, 2000.)
Posting of bail won't constitute a waiver of the right to a preliminary investigation.
If the right is timely invoked, the court will suspend the proceedings and remand the case to the prosecutor for a preliminary investigation. This must be done before entering a plea or else the accused will be considered as having waived his right (Torralba vs. Sandiganbayan, 230 SCRA 33.)
If there is no preliminary investigation, the accused has the following remedies:
1.) Refuse to enter a plea when being arraigned and object further proceeding on that ground
2.) Insist on a preliminary investigation
3.) If refused a preliminary investigation, file certiorari (and may even file an administrative case against the judge for denying his request)
4.) Raise the lack of preliminary investigation as an error on appeal
5.) File prohibition
A preliminary examination, on the other hand, is a judicial function and its purpose is to determine probable cause to issue an arrest warrant. Only a judge can do this and it can be done ex parte.
Purposes
1.) Protect an innocent person from hasty, malicious and oppressive prosecution
2.) Keep the state from spending for an expensive and useless trial
3.) Protect an innocent person from open and public accusation of a crime, trouble, expense and anxiety of a public trial (Duterte vs. Sandiganbayan, GR 130191. April 27, 1998)
4.) Determine whether or not a crime was committed and if there is probable cause to believe that the accused is guilty and it doesn't jeopardize the people against whom it's taken (Raro vs. Sandiganbayan, GR 108431, July 14, 2000)
Probable Cause
The existence of facts and circumstances that excite belief in a reasonable mind (based on facts within the prosecutor's knowledge) that the person charged is guilty for the the crime committed.
The people who can conduct a preliminary investigation are the following:
1.) Provincial and city prosecutors (and their assistants)
2.) National or regional prosecutors of the DOJ
3.) The ombudsman or his deputy
4.) The COMELEC director, in election offenses
5.) Duly authorized officers of the PCGG
6.) The legal division of the BIR, in case of tax fraud under the NIRC
The accused's presence isn't a sine qua non condition for a valid preliminary investigation. What matters is that efforts to reach him were made and he was given the opportunity to refute the complainant's evidence. This rule is important because it serves as a way to prevent unscrupulous respondents from thwarting the prosecution by either hiding or using dilatory tactics.
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