THE PROSECUTION PILLAR

THE PROSECUTION

Prosecution- it is the process or method whereby accusations are brought before the court of
justice to determine the guilt or innocence of the accused.

Prosecution 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 crime.

to prosecute- it means to begin and to carry on a legal proceeding and it marks the
commencement of a criminal prosecution and precedes and determines the filing of an
information.

The burden of balancing social orderliness and human liberty lies on the shoulders of our
prosecutors. They are government officials who represent the people of a particular jurisdiction.
The STATE PROSECUTOR serves as the lawyer of the state in criminal cases.

The prosecution service is linked closely with the law enforcement pillar on which it relies
heavily for the quality of the evidence for the purposes of prosecution and also with the judicial
pillar, which handles all the cases for prosecution until a decision is reached.

Although the prosecutor has a direct control in prosecuting all criminal actions, private
prosecutors are also allowed to act as lead or assistant prosecutor provided that they get the
approval of the Chief State Prosecutor or a Regional State Prosecutor. Such authority will last
until the trial is completed unless it is revoked.

DUTIES OF A PROSECUTOR

Who is a prosecutor?

- it refers to a quasi-judicial officer who assumes full discretion and control over a criminal case
in the administration of justice and represents the government or the people of the Philippines in
a criminal proceeding before a court of law.

The function of a prosecutor is to initiate and prosecute all criminal prosecutions. The public
prosecutor is actively involved in the investigation of crimes and can commence and
investigation upon receiving a report from the law enforcement agency or a private party. Courts
rely heavily on the evidence submitted by the prosecution panel, which comprises the work of
both the police and the prosecutor.

The prosecution of the cases relies heavily within the discretion of the prosecutor. The
prosecutor verifies whether or not the person arrested should be placed under the criminal justice
process. He determines whether there exists a prima facie case based on evidence gathered by the
police. It is in this precept where the prosecutor is deemed to have more control over the life,
liberty and reputation of a person suspected to have violated the law.

PHILIPPINE PROSECUTION SYSTEM

Adopts both adversarial and inquisitorial system

The victims or their representatives provide the facts, evidence and testimony of
witnesses to the guilt of the accused.
The judge will investigate and determine the guilt of the accused beyond reasonable
doubt or moral certainty.
ADVERSARIAL OR ACCUSATORIAL SYSTEM

The victims or their representatives have the primary responsibility of finding and
presenting evidence to the court
The judge listens to the accusation and determines the applicable punishment of the
accused.

INQUISITORIAL SYSTEM

The judge searches the facts, listens to the witnesses and investigates to prove the guilt or
innocence of the accused.

NATIONAL PROSECUTION SERVICE

Headed by: Chief State Prosecutor

Assisted by: Five Assistant Chief State Prosecutors

Roles:

1. To investigate allegations submitted to it that a crime has been committed.

2. To prosecute all cases involving violation of penal laws.

Three Most Important Phases of the Work:

1. Preliminary investigation of criminal complaints, drafting of the resolution by the fiscal,

its approval by the chief of office (usually the provincial or city prosecutor), and filing of
the information in court;
2. Appeal of the resolution by the provincial or city prosecutor to the Regional State
Prosecutor, or the Secretary of Justice, as the case may be, and its eventual resolution by
these offices; and
3. Prosecution of criminal cases already filed in courts of the first or second level
(Municipal Trial Courts or Regional Trial Courts)

GENERAL FUNCTIONS OF STATE PROSECUTORS

1. Investigate administrative charges against prosecutors and other prosecution officers.

2. Conduct the investigation and prosecution of all crimes.

3. Prepare legal opinions on queries involving violations of the Revised Penal Code and Special
Penal Laws.

4. Review appeals from the resolutions of prosecutors and other prosecuting officers in
connection with criminal cases handled by them.

FUNCTIONS OF A REGIONAL STATE PROSECUTOR

1. Implement policies , plans, programs, memoranda, orders, circular, and rules and regulations
of the DOJ relative to the investigation and prosecution of criminal cases in his region.

2. Exercise immediate administrative supervision over all Provincial and City Prosecutors and
other prosecuting officers of provinces and cities comprised within its region.

3. Prosecute any case arising within the region.

4. With respect to the regional office and the offices of the Provincial and City Prosecutors
within its region, the Regional State Prosecutor shall:

a. Appoint such number of subordinate officers and employees as may be necessary and
approve transfer of subordinate personnel within the jurisdiction of the regional office;

b. Investigate administrative complaints against prosecutors and other prosecuting

officers within its region and submit its recommendation to the Secretary of Justice who
shall review the recommendation and submit the appropriate recommendations to the
Office of the President, provided, that where the Secretary of Justice finds insufficient
ground for the filling of charges he may render a decision of dismissal thereof; and

c. Investigate administrative complaints against subordinates, negotiate and conclude

contracts for services or for furnishing supplies, materials, and equipment.

5. 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.

FUNCTIONS OF A PROVINCIAL/ CITY PROSECUTOR

1. 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.

2. Investigate and/or cause to be investigated all charges of crimes, misdemeanors, and violations
of penal laws and ordinance 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 summoned by subpoena for the purpose.

3. Investigate commissions of criminal acts and take an active part in the gathering of relevant
evidence. For this purpose, the National Bureau of Investigations Philippine National Police, and
other offices and agencies of the government shall extend to him the necessary assistance.

4. 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.

5. Assists 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.

ART. 344. PROSECUTION OF PRIVATE CRIMES

I. Necessity of a complaint i.e a formal denunciation indicating that the victim and her family
opt not to keep the incident a private matter but to bring it out in the open in order to prosecute
the offender

A. In adultery and concubinage: the complaint can only be initiated by the offended spouse
who must still be married to the guilty spouse at the time of the bringing of the complaint, and
not when the marriage has already been annulled or voided at the time when the action was
brought.
 1. Against both guilty parties if both are alive

2. Provided there was no prior consent or pardon

B. In Acts of lasciviousness and abduction, the complaint must be initiated by the following
enumerated persons.

NOTE: The enumeration is both exclusive (no other person has the personality to file except
those in the enumeration) and successive (the order of preference must be followed):

1. Victim or offended party unless the victim is incapacitated by reasons other than
minority. If she is of legal age, she alone can bring the action.

2. By either of the parents if the victim is a minor who refuses to file, or is incapacitated as
when she is demented or insane

3. By either of the Grandparents

4. By the legal or the court appointed guardian

5. By the state as parens patriae when the victim dies or becomes incapacitated before she
can file the complaint and has no known parent, grandparents or guardian

II. Defenses in Acts of Lasciviousness and Abduction

A. Pardon by the Offended Party

1. The pardon must be express

2. If the offended party is of legal age and is not otherwise incapacitated, she alone can
extend a valid pardon

3. If a minor but of sufficient discretion, the victim can extend a valid pardon if she has no
parent, otherwise the pardon must be concurred by the parent, grandparent or guardian

B. A valid marriage between the offended and the offender i.e contracted in good faith

1. Extinguishes the criminal liability (case will be dismissed) or remits the penalty
(accused will not suffer the penalty anymore).

2. This benefits the co-principals (by indispensable cooperation and inducement but not co-
principals by direct participation), accomplices and accessories
ART. 345. CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST
CHASTITY

I. They include:

A. Indemnification of the offended party. Moral damages are recoverable in acts of

lasciviousness by the victim as well by the parents.

B. Acknowledgement of the offspring, unless the law should prevent him from so doing.

C. To support the offspring.

1. In the following there can be no acknowledgement:

(a) in cases of adultery and concubinage

(b) where the offended party is married, provided that paternity is not that of the
husband

(c) when paternity cannot be determined. Note: DNA testing is accepted to determine
paternity.

2. Where there are several accused and paternity cannot be determined, all must give
support.

WHAT IS PRELIMINARY INVESTIGATION?

Preliminary Investigation- defined as an inquiry or proceeding to determine whether there is

sufficient ground to engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof, and should be held in trial.

Importance of Preliminary Investigation:

 1. Protect the innocent against hasty, oppressive and malicious prosecution
2. Secure the innocent from an open and public accusation of trial, from the trouble
expenses and anxiety of public trial.
3. Protect the state from useless and expensive trial.
4. For the investigating prosecutor to determine if the crime has been committed.
5. To determine the amount of bail if the offense is bailable.

When to conduct Preliminary Investigation?

A preliminary investigation is required to be conducted before the filing of a compliant 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 the fine.

Exception:

A person is arrested lawfully without a warrant involving an offense which requires a

preliminary investigation. If he has been arrested in a place where an inquest prosecutor
is available, an inquest will be conducted instead of preliminary investigation. In absence
or unavailability of an inquest prosecutor, the complaint may be filed directly with the
proper court on the basis of the affidavit of the offended party or arresting officer or
person. ( Rule 112 Sec 7, Criminal Procedure)

Difference between Preliminary Investigation conducted by the Prosecutor and the

Preliminary Investigation conducted by the judge?

Preliminary Investigation conducted by the prosecutor is executive in nature, it is for the purpose
of determining whether or not there exist sufficient ground for the filing of information.

Preliminary Investigation conducted by the judge which is properly called Preliminary

Examination this is for the determination of probable cause for the issuance of warrant of arrest.

Preliminary Investigation is Constitutional or Fundamental Right?

Preliminary Investigation is not fundamental right and not guaranteed in the Bill of rights. The
right is of a statutory character and be denied. It is a personal right, the same may be waived
expressly or impliedly.

Instances wherein the right to Preliminary Investigation is not deemed waived?

1. Failure to appear before the prosecutor during the clarificatory hearing or when
summoned, when the right was invoked at the start of the proceeding.
2. When the accused filed an application for bail and was arraigned over his objection and
the accused demanding, that preliminary investigation be conducted.

Effect of Absence of Preliminary Investigation?

It does not:

1. Become a ground for a motion to quash the complaint or information

2. Affect the courts jurisdiction
3. Impair the validity of the information or render it defective
4. Justify the release of the respondent or nullify the warrant of arrest against him.
Instances wherein the right to Preliminary Investigation is deemed waived?

1. Express waiver or by silence

2. Failure to invoke during the arraignment
3. Consenting to be arraigned and entering a plea of not guilty without invoking the right to
preliminary investigation

Probable Cause is the existence of facts and circumstances that would induce a cautious man to
rely and act on it or would reasonably make a prudent man to believe that a crime has been
committed. It implies probability of guilt and requires more than bare suspicion but less than
evidence to justify a conviction.

Paramount to the prosecutors role is to establish at the initial stages that a probable cause
exists that a crime has been committed, and to file the corresponding information if he finds it to
be so. This requires close coordination with the investigating agencies the PNP, NBI, and
quasi-judicial bodies empowered to conduct investigation.

Officers Authorized to Conduct Preliminary Investigation

1. Provincial or City Prosecutors and their assistants;

2. National and Regional State Prosecutors; and
3. Other officers as may be authorized by law (e.g., COMELEC, Ombudsman)

Mandatory Preliminary Investigation

Required to be conducted before the filing of a complaint or information for an offense

where the law prescribes a penalty of at least four (4) years, two (2) months and one
(1) day without regard to fine.

If prescribed penalty is less than 4 years, 2 months and 1 day it is not required but there
are 2 ways of initiating criminal action:

by filing the complaint directly with the prosecutor; or

by filing the complaint or information with the Municipal Court
No right of preliminary investigation when a person is lawfully arrested without warrant.

Procedure in the Conduct of Preliminary Investigation

The preliminary investigation process will only commence upon the filing of a complaint by the
victim, complainant, or police officer to the fiscal or prosecutors office.

In actual application, the complaint is normally initiated through an affidavit of complaint. This
complaint is required to state the address of the respondent and shall be accompanied by (1) the
affidavits of the complaint, (2) the affidavits of his witnesses, and (3) other supporting
documents. These affidavits and supporting documents are required in order to establish
probable cause. They shall be in such number of copies as there are respondents, plus two copies
for the official file.
The affidavits shall be subscribed and sworn before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary public, each
of whom must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.

COMPLAINT OR INFORMATION

A complaint is a sworn written statement charging a person with an offense, subscribed by the
offended party, any peace officer, or other public officer charged with the enforcement of the law
violated. As a statement, it must be sworn and written. Take note that the complaint is
subscribed only by any of the persons specified in the rule, namely, the offended party, any
peace officer, or other public officer.

Information is an accusation in writing charging a person with an offense subscribed by the

prosecutor and filed with the court. While information is an accusation in writing, it is not
required to be sworn unlike a complaint. Only a public officer described by the Rules of Court as
a prosecutor is authorized to subscribe to the information.

A complaint or information is sufficient if it states the name of the accused; the designation of
the offense given by the statute; the acts or omissions complained of as constituting the offense;
the name of the offended party; the approximate date of the commission of the offense; and the
place where the offense was committed.

PARTIES TO A CRIMINAL ACTION

A complaint or an information is filed in the name of the People of the Philippines against all
persons who appear to be responsible for the offense involved. When an offense is committed by
more than one person, all of them shall be included in the complaint or information.

In criminal cases, the offended party is the State, and the interest of the private complainant or
the private offended party is limited to the civil liability. The complainants role is limited to that
of the witness for the prosecution.

ISSUANCE OF SUBPOENA

Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss
it if he finds no grounds to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant who
he may not have been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those, which he intends to present against the
respondent, and these shall be made available for examination or copying by the respondent at
his expense.

Objects as evidence need not be furnished to a party, but shall be made available for
examination, copying, or photographing at the expense of the requesting party.

A subpoena is a writ issued by a government agency, most often a court, to compel testimony by
a witness or production of evidence under a penalty for failure.
SUBMISSION OF COUNTER-AFFIDAVITS

Within ten days from receipt of the subpoena with the comolaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavits, and that of his witnesses and other
supporting documents relied upon for his defense.

Shall be subscribed and sworn to and certified as provided in the Rules, with copies furnished
by him to the complainant.

If the respondent cannot be subpeonaed, or if subpoenaed does not submit his counter-affidavits
within the ten day period, the investigating officer shall receive his complaint based on the
evidence presented by the complainant.

HEARING

The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness.

The hearing shall be held within ten days from submission of the ccounter-affidavitsand other
documents or from the expiration of the period for their submission. It should be terminated
within five days.

RESOLUTION OF THE PROSECUTOR

Within 10 days after the investigation, the investigating shall determine whether or not there is
a sufficient ground to hold the respondent for trial.

If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the
resoliton and corresponding information.

In dismissing the complaint, the resolution should contain in argument finding no probable
cause.

The prosecutor shall forward the records of the case to the provincial or city prosecutor or chief
state prosecutor within 5 days from his resolution.

PARTIALITY OF THE PROSECUTOR

If the prosecutor unreasonably refuses to file information to the court or did not include a
person as an accused despite the fact that evidence clearly warrants action, the offended party has
the following remedies:

1. May lodge a new complaint against the offender to the court having jurisdiction of the case,
and have the new axamination conducted as required by law.

2. Make an appeal to the Secretary of Justice who may take measures in the interest of justice.

3. May institute administrative charges against the erring prosecutor.

4. May file a case against the prosecutor under Article 208 of the Revised Penal Code.

5. May file a civil action for damages under Article 27 of the Civil Code on the ground of refusal
or neglect in the performance of official duties.

6. May secure an appointment to another prosecutor.

7. May institute another criminal action If double jeopardy has not yet attached.

INQUEST

An informal and summary investigation conducted by a public prosecutor in criminal

cases
Involves persons arrested and detained without the benefit of a warrant of arrest issued by
the court

Purpose

1. To ensure that persons without a warrant are not unlawfully detained and that they are not
denied due process
2. To establish whether the evidence is sufficient enough to seek court approval to keep the
person in detention

DOJ Circular 16 on New Rules on Inquest

1. Prosecutors have the duty to oversee police investigations in cases involving inquest
proceedings
2. Each police station or headquarters should have designated inquest prosecutors to process
inquest procedures with a schedule of assignments for their regular inquest duties

Procedure

1. The inquest proceedings shall be considered commenced upon receipt by the inquest
prosecutor or inquest officer from the law enforcement authorities of the
complaint/referral documents, which should include the following:
a. affidavit of arrest;
b. investigation report;
c. statements of the complainants and witnesses; and
d. other supporting evidence gathered by the police in the course of the latters
investigation of the incident involving the arrested or detained person.
2. The Inquest Prosecutor shall determine if the detained person has been arrested lawfully
in accordance with Sections 5 (a) and (b), of Rule 113 of the Rules of Court.
 3. The warrantless arrest must be lawful, which is effected by a peace officer or a private
person in the following instances:
a. when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit and offense; or

b. when an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it.

4. For this purpose, the Inquest Officer may summarily examine the arresting officers on the
circumstances surrounding the arrest or apprehension of the detained person.

5. If the Inquest Prosecutor finds that the arrest made by the police without a warrant is not
proper, the Inquest Prosecutor shall not proceed with the inquest proceedings. Instead, he shall;

a. recommend the release of the detained or arrested person;

b. note down the disposition on the referral document;

c. prepare a brief memorandum indicating results of the action taken; and

d. forward the same together with the record of the case to the City or Provincial
Prosecutor for appropriate action.

The rule that a complaint or information may be filed against the person lawfully arrested
without need for a preliminary investigation is not absolute because before such complaint or
information is filed, the person arrested may ask for a preliminary investigation after signing a
waiver of the provisions of Article 125 of the Revised Penal Code, in the presence of his counsel.
The preliminary investigation must be terminated within fifteen (15) days from its inception.

The RPC provision on waiver imposes a penalty upon a public officer or an employee who,
although having detained a person on some legal ground, fails to deliver the person arrested to
the proper judicial authorities within required periods. Cases punishable with light penalties must
be resolved in 12 hours; those punishable with correctional penalties within 18 hours; and those
punishable by afflictive or capital penalties, within 36 hours. If the Inquest Prosecutor fails to
complete the proceedings in the prescribed period, then the person must be released.

If the arrested person will not execute the said waiver, the Inquest Prosecutor shall proceed
with the inquest by examining the supporting evidence presented. If he finds that there is a
probable cause, he shall prepare the corresponding information with the recommendation that the
same be filed in court. If no probable cause is found, he shall recommend the release of the
detained person.

After the Inquest Prosecutor has conducted the preliminary investigation, he will forward the
records of the case with the complaint or information to the City or Provincial Prosecutor for
appropriate action.

The information should contain a certification by the filing prosecutor that he is filing the
case with the approval of the City Provincial Prosecutor.

APPEALS

A respondent against whom the investigating prosecutor issued an adverse resolution is

not without any remedy. Even though the prosecutor has filed charges in court, a petition for
review of the prosecutors findings can still be made. All petitions for review of resolutions must
be filed with the RSP concerned, who shall resolve them with finality in certain cases.

Rule When Recommendation for Dismissal is Disapproved

Where the investigating prosecutor, recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the ground that a probable cause exists, the latter, may by
himself, file the information against the respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary investigation.

Motion for Reconsideration

The aggrieved party under current practice is not precluded from filing a motion for
reconsideration before the Office of the Prosecutor within fifteen (15) days from receipt of then
assailed resolution. If the motion is denied, the aggrieved party may appeal within fifteen (15)
days from the denial of the motion for reconsideration.

Appeals to the Secretary of Justice; Filling a Petition for Review

In cases subject of preliminary investigation or reinvestigation, an appeal may be brought

to the Secretary of Justice from the resolutions of the Chief State Prosecutor, Regional State
Prosecutors, and Provincial/City Prosecutor. The Secretary of Justice has the ultimate authority
to decide which of the conflicting theories of the complaints and the respondents should be
believed.
 The appeal shall be taken within fifteen (15) days from the receipt of the assailed
resolution. If a motion for reconsideration or reinvestigation has been filed within fifteen (15)
days from the receipt of the assailed resolution, the appeal shall be taken within fifteen (15) days
from the receipt of the denial of the motion for reconsideration or reinvestigation. Only one
motion for reconsideration is allowed.

The Secretary of Justice may reverse, affirm, or modify the appealed resolution. He may also
dismiss the petition for review motu propio or upon motion on any of the following grounds.

a. that the petition for review was files beyond the period prescribed;
b. that the prescribed procedure and requirements provided in the Department Circular No.
70 were not complied with;
c. that there is no showing of any reversible error;
d. that the appealed resolution is interlocutory in nature, except when it suspends the
proceedings based on the alleged existence of a prejudicial question;
e. that the offense has already prescribed; and
f. that there are other legal and factual grounds that exist to warrant a dismissal.

The Secretary, however, has other opinion. He may order the reinvestigation of the case.
If the Secretary of Justice finds it necessary to investigate the case, the investigating prosecutor
shall make the reinvestigation, unless for compelling reasons, other prosecutor is designated to
conduct the same.

The party aggrieved by the decision of the Secretary of Justice may file a motion for
reconsideration within a non-extendible period of ten (10) days from the receipt of the resolution
on appeal. Copies of such motion and proof of service thereof shall be served upon the adverse
party and Prosecution Office concerned. No further or second motion for reconsideration shall be
entertained.