Reasonable certainty of conviction as probable cause
Under the current framework of criminal cases in the Philippines, generally, a complaint must first be filed with the Office of the City Prosecutor if the penalty for the crime, as prescribed by law, is at least four years, two months, and one day, without regard to the fine. Once the complaint is received by the prosecutor, an investigation is conducted, also known as a “preliminary investigation,” for the purpose of determining whether an information against the respondent shall be filed with the proper court.
The preliminary investigation is a critical component of criminal investigation. It is the initial step in deciding whether a crime has been committed, who committed the crime, and the preliminary evidence required to push through with the case. In our legal landscape, this preliminary inquiry is critical to ensure that justice is served. A preliminary investigation protects people from false allegations and malicious complaints. It is a process that aims to weed out unfounded claims brought with the purpose of harming an individual or group by pushing the prosecutor to thoroughly explore the accusations.
Theoretically, what guides prosecutors in determining whether an information should be filed in court? Under the Rules of Court, the prerequisite is the existence of probable cause. Probable cause simply means sufficient ground to engender a well-founded belief that a crime has been committed and the person to be charged is probably guilty and should be held for trial. As the Supreme Court aptly puts it, probable cause is merely based on opinion and belief.
In February of this year, the Department of Justice (DoJ) issued Department Circular No. 008, s. 2023 and Department Circular No. 008-A, s. 2023 (DoJ Circulars No. 008 and 008-A), directing all prosecutors handling criminal cases for offenses cognizable by first level courts — i.e., the Municipal Trial Courts, Municipal Trial Courts in Cities, and Metropolitan Trial Courts — “to carefully assess all their cases and to determine if each has a reasonable certainty of conviction based on the evidence in hand, availability of witnesses, and continued interest of private complainants.” The Department Circulars go on to say that if, upon assessment by the handling prosecutor, it is determined that there is no such reasonable certainty of conviction, the said handling prosecutor is ordered to immediately file the proper motion in court to withdraw the information.
Notably, on Feb. 24, the DoJ issued Department Circular No. 016, s. 2023, which supposedly serves as a guideline to implement DoJ Circulars No. 008 and 008-A. However, a complete reading of DoJ Circular No. 016 would reveal that it was not simply issued to implement DoJ Circulars No. 008 and 008-A. DoJ Circular No. 016, in Section 9 thereof, further goes on to say that no criminal case shall henceforth be filed with first level courts if there is no reasonable certainty of conviction for the same.
DoJ Circular No. 016 further defines reasonable certainty of conviction as the existence of a prima facie case “based on the evidence-at-hand including but not limited to witnesses, documentary evidence, real evidence, and the like, and such evidence, on its own and if left uncontroverted by accused, shall be sufficient to establish all the elements of the crime or offense charged, and consequently warrant a conviction beyond reasonable doubt.”
The question now is not so much whether DoJ Circular No. 016 altered existing rules by requiring “reasonable certainty of conviction,” rather than the prior need of probable cause as provided for in the Rules of Court and a long line of Supreme Court rulings. The more pressing question is — may the DoJ, in the first place, even alter the evidentiary standard of probable cause as required in preliminary investigations?
In this regard, our Supreme Court, time and again, has repeatedly stated that the preliminary investigation is not the appropriate forum for the full and exhaustive presentation of the parties’ evidence. More importantly, the preliminary investigation is not the appropriate place for determining a person’s guilt or innocence. However, a cursory reading of DoJ Circular No. 016 reveals that it tends to require a comprehensive presentation of evidence and may even be regarded as the prosecutor determining a person’s guilt or innocence. Remarkably, the term “probable cause” is not even mentioned in the said circular.
On another note, DoJ Circular No. 016 also tends to disarm the prosecutor from obtaining critical evidence by resorting to judicial processes, such as subpoenas and the discharge of state witnesses, among others. There is also that question of whether DoJ Circular No. 016 violates the equal protection guarantee, since the standard of “reasonable certainty of conviction” only applies to first-level courts and not to other courts, like the Regional Trial Courts, the Sandiganbayan, and the Court of Tax Appeals.
Nonetheless, it is important to note that executive determination of probable cause, as in the case of a preliminary investigation, is a function within the exclusive sphere and competence of the Executive Department, and courts will generally respect such exercise of discretion, save in cases for grave abuse of discretion. Simply put, it is the State, through the Department of Justice, that decides whether to prosecute a criminal case in court. In hindsight, DoJ Circular No. 016 can be seen as the Executive Department’s exercise of discretion in determining whether probable cause exists or not.
It is interesting to see future developments unfold. As DoJ Circular No. 016 has not been challenged in court, the same stands to be valid. The DoJ’s efforts to impose what may seem to be a stricter standard for preliminary investigation is also praiseworthy for being aimed at unclogging and decongesting court dockets, an issue that our Supreme Court has been trying to address over the years.
Taking everything into consideration, is the term “executive determination of probable cause” still proper? Or is “executive determination of reasonable certainty of conviction” the more appropriate term now?
This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.
Mark David Q. Vergara is an associate of the Litigation and Dispute Resolution Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).