Rule 112 Preliminary Investigation 1.

Preliminary investigation inquiry or proceeding to determine if there is sufficient ground to engender a well-founded belief that a crime cognizable by the RTC has been committed, and that the respondent is probably guilty thereof, and should be held for trial A preliminary investigation is only necessary for an information to be filed with the RTC; complaints may be filed with the MTC without need of an information, which is merely recommendatory (Tandoc vs. Resultan) Absence of a preliminary investigation is NOT a ground for a motion to quash the information; an information filed without a preliminary investigation is defective but not fatal; in its absence, the accused may ask for one; it is the fiscals refusal to conduct a preliminary investigation when the accused demands one which is a violation of the rights of the accused (Doromal vs. Sandiganbayan). Court should not dismiss the info, but hold the case in abeyance and either: (1) conduct its own investigation; or (2) require the fiscal to hold a reinvestigation. 2. GENERAL RULE: The fiscal conducts the preliminary investigation before filing an information with the RTC, EXCEPT where the accused is lawfully arrested without a warrant and an inquest is conducted. 3. Right to Preliminary Investigation A personal right and may be waived Waived by failure to invoke the right prior to or at least at the time of the plea 4.
1. 2. 3. 4. 5. 1. 2.

Who conducts Preliminary Investigation

Provincial or city fiscals and their assistants Judges of MTC and MCTC National and regional state prosecutors Such other officers as may be authorized by law Duly authorized legal officers of COMELEC The Ombudsman The PCGG, in cases of ill-gotten wealth

5. Procedure

a. If conducted prior to arrest i. Complainant files complaint with

(a) Provincial or city fiscal

(b) Regional or state prosecutor (c) MTC or MCTC judge, excluding MTC judge of Metro Manila or chartered cities (d) Other offices authorized by law
1. 1. Investigating officer either dismisses complaint or asks by subpoena complainant and respondent to submit affidavits and counteraffidavits If the investigating officer finds prima facie evidence, he prepares an information and a resolution

i.e., if fiscal finds reasonable ground to believe that a crime has been committed and accused is probably guilty thereof Prima facie evidence is that evidence which, standing alone, unexplained and uncontradicted, would be enough to merit a conviction of the accused iv. Otherwise, he recommends the dismissal of the complaint If the investigating officer is an MTC judge, and he finds that probable cause exists and that there is a need to place the accused under custody, then he may issue a warrant of arrest Flores vs. Sumaling What differentiates the present rule from the previous one is that while before, it was mandatory for the investigating judge to issue a warrant for the arrest of the accused if he found probable cause, the rule now is that the investigating judges power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody in order not to frustrate the ends of justice. It is therefore error for the investigating judge to order the issuance of a warrant of arrest solely on his finding of probable cause, without making any finding of a necessity to place the accused in immediate custody to prevent a frustration of justice.
1. 1. Investigating officer forwards records to the city fiscal or chief state prosecutor City fiscal or state prosecutor either dismisses the complaint or files the information in court

Decision prevails over decision of the MTC judge vii. Records will not form records of the case proper Court on its own or on motion may order production of record b. If conducted after warrantless arrest
1. If accused waives Art. 125, RPC and asks for a preliminary investigation, with the assistance of counsel, then the procedure

1.

for one prior to arrest is followed Inquest conducted as follows

(a) Fiscal determines the validity of the arrest (b) Fiscal determines existence of prima facie evidence based on the statements of the complainant, arresting officer and witnesses (c) Fiscal either dismisses the complaint and orders the immediate release of the accused, OR prepares and files an information While fiscal has quasi-judicial discretion whether or not to file an information, once it is filed with the court, the court acquires jurisdiction giving it discretion over the disposition of the case and the Sec. of Justice should refrain from entertaining petitions for review or appeals from the decision of fiscal (Crespo vs. Mogul; Velasquez vs. Undersecretary of Justice) NOTE: Information may be filed by offended party, peace officer or fiscal without preliminary investigation. 6. Remedies a. Motion for preliminary investigation Filed when accused is arrested without warrant Must be with assistance of counsel and after waiving Art. 125, RPC b. Motion for preliminary investigation Filed within 5 days after accused learns an information against him has been filed without a preliminary investigation c. Motion for re-investigation d. Appeal to DOJ Filed upon denial of his motion for a preliminary investigation, on the ground that his rights to due process of law were violated, ousting the court of jurisdiction e. Petition for prohibition Filed with appellate court to stop the criminal proceedings Ordinarily, injunction will not lie but may be granted in certain cases When prohibition proper to restrain criminal proceedings:

1. 2. 3. 4. 5.

When strong-arm tactics are used for vindictive purposes ( Salonga vs. Cruz-Pano) When the accused is deprived of his rights When the statute on which the charge is based is null and void When it will aid the administration of justice (Tatad vs. Sandiganbayan) When multiplicity of suits will be avoided (Guingona vs. City Fiscal)

Rule 113 Arrest 1. Arrest taking a person into custody in order that he may be bound to answer for the commission of some offense, made by an actual restraint of the person or by his submission to custody 2. General Rule: No person may be arrested without a warrant.

Not all persons detained are arrested; only those detained to answer for an offense. Invitations are not arrests and are usually not unconstitutional, but in some cases may be taken as commands (Babst vs. NBI); however, the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed is considered as placing him under custodial investigation. (RA 7438) Warrants of arrest remain valid until arrest is effected, or the warrant is lifted Arrest may be made at any time of the day or night 3. Warrantless arrests by a peace officer or a private person a. When person to be arrested is committing, attempting or has committed an offense b. When an offense has just been committed and the person making the arrest has personal knowledge that the person to be arrested committed it Warrantless arrest anytime for a continuing offense like rebellion, subversion (Umil vs. Ramos) The continuing crime, not the crime finally charged, needs only be the cause of the arrest (Umil vs. Ramos) c. When person to be arrested is an escaped detainee (either serving sentence or with case pending)
1. 2. 3. When a person lawfully arrested escapes Bondsman, for purpose of surrendering the accused Accused attempts to leave country without court permission

4. Procedure a. With warrant

1. 2. Complainant files application with affidavits attached Judge conducts ex parte preliminary examination to determine probable cause

In determining probable cause, judge must: (1) Personally examine witness (2) Witness must be under oath (3) Examination must be reduced to writing (Luna vs. Plaza) In determining probable cause, the judge may rely on findings by responsible officer (Lim vs. Felix) iii. Judge issues warrant of arrest If without preliminary examination, considered irregular (Bagcal vs. Villaraza) iv. If peace officer is unable to serve warrant 10 days after issuance, he must file a report and explanation with judge within 10 days v. If warrant served (1) Person informed that he is being arrested (2) Informed of cause of his arrest (3) Officer may break door or window if admission to building is refused (4) Person physically restrained For private citizens making an arrest May not do so except to do some service to humanity or justice (5) No violence or unnecessary force may be used (6) Officer may summon assistance (7) Person who escapes after arrest may be immediately pursued vi. Person arrested is brought to nearest police station or jail

b. Without warrant:

1. 1.

Person is arrested Person arrested may waive right to Art. 125, RPC and ask for preliminary investigation or inquest

Fiscal is not judicial authority contemplated under Art. 125 (Sayo vs. Chief of Police)
1. Fiscal files info

5.
1. 2. 3.

Requisites for a warrant of arrest:

Probable cause Signed by judge Specifically naming or particularly and sufficiently describing person to be arrested

John Doe warrants are void for being general warrants (Pangandaman vs. Cesar) 6. Remedies a. Petition for writ of habeas corpus

Filed with any court, to effect immediate release of the person detained Filed when a person is being illegally detained (without judicial process), or was illegally arrested (void warrant or unlawful warrantless arrest, or warrantless arrest beyond period with no information filed) Habeas corpus is not allowed when:
1. 2. The person is in custody of an officer under process of law, and The court had jurisdiction to issue the process (Luna vs. Plaza)

If an arrest is improper, the remedy is a motion for quashal of the warrant of arrest and/or a motion to quash the information, not habeas corpus (Ilagan vs. Enrile) Habeas corpus is no longer available after an information has been filed, the information being the judicial process required by law (Ilagan vs. Enrile) Habeas corpus is proper when a person is being restrained illegally, e.g., imprisoned past maximum penalty allowed by law (Gumabon vs. Director of Prisons) b. Quashal of warrant of arrest Filed with court which issued the warrant of arrest when the warrant of arrest is fatally flawed c. Motion to quash information

 Filed with court when information against the person arrested has been filed Must be made in a special appearance before the court questioning only its lack of jurisdiction over the person of the accused Otherwise, the voluntary appearance of the person arrested by filing a motion before the court would be deemed a submission to the authority of the court, thus granting it whatever jurisdiction it lacked over the person Any irregularity in the arrest is cured when the petitioner submits himself to the jurisdiction of the court, e.g., by filing for bail (Bagcal vs. Villaraza) 7. V.V. Mendoza, Rights to Counsel in Custodial Investigation Evolution of rights of the accused under custodial investigation
1. 1. 2. All involuntary confession were inadmissible; accused had to prove involuntariness Involuntary confessions were inadmissible only if they were false Revert to exclusionary rule: any involuntary confession is inadmissible Miranda rule: the accused must be informed of his rights To remain silent Against self-incrimination To counsel Definition of custodial investigation questioned It begins only after arrest Police investigations prior to arrest are not covered The rights may be waived, but the rights to be informed of these rights, i.e., to warning, may not be waived Warning must not only be said, officer must make sure the person arrested understands them specifically Present rules Voluntary confessions are admissible Test of voluntariness determined on a case-to-case basis Waiver of rights must not only be with counsel but must be in writing

1. 2. 3. 4. 1. 2. 3. 4. 5. 1. 2. 3.

Confessions made without assistance of counsel are inadmissible as evidence to incriminate the accused, but they may be used to impeach the credibility of the accused, or they may be treated as verbal admission of the accused through the testimony of the witnesses (People vs. Molas)