May the Evidentiary Standard of Probable Cause in Preliminary Investigation be Changed by the DOJ to One of “Reasonable Certainty of Conviction”?

The Department of Justice (DOJ) recently issued Department Circular No. 008 dated 10 February 2023.  The circular directs prosecutors to assess criminal cases pending before the first-level courts (municipal trial courts, metropolitan trial courts, and municipal trial courts in cities) and to file motions to withdraw the information if the prosecutor determines that there is no “reasonable certainty of conviction.” The passage of the circular is in line with efforts to decongest and unclog court dockets. 

Currently, the evidentiary standard of “reasonable certainty of conviction” applies only to the filing of a motion to withdraw information in a criminal case pending before a first-level court. Such a standard is not applicable to preliminary investigation of criminal complaints which have yet to be filed in court. These are governed by Rule 112 of the Rules of Criminal Procedure in which the quantum of evidence required for the filing of a case in court is still probable cause.

There is nothing amiss about Circular No. 008 since the motion to withdraw information remains subject to the approval of the court. The court in the exercise of sound discretion may deny the motion if it feels that there is a good ground to continue with the prosecution of the case.[1] What may be somewhat arguable however is the DOJ proposal to change the evidentiary standard of probable cause in preliminary investigation to one of “reasonable certainty of conviction.” 

Under the present Rule 112 of the Rules of Criminal Procedure, in criminal cases requiring a preliminary investigation,[2] a prosecutor will file the information with the criminal court if he or she determines after a preliminary investigation that there is probable cause, that is, “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.”[3]  Note that probable cause requires only probable guilt, not reasonable certainty of guilt.  However, under the DOJ proposal, a prosecutor will file the information in court only if he or she determines that there is a “reasonable certainty of conviction”; mere probable cause will not justify holding the respondent for trial.    

My view is that the DOJ should retain the probable-cause standard. There is a reason why the quantum of evidence in preliminary investigation is only probable cause and not “reasonable certainty of conviction.”

It would be premature for a prosecutor to determine at the preliminary investigation stage that although there is probable cause, there is no “reasonable certainty of conviction.” In quite a number of cases, especially in violent crimes and those involving fraud, a zealous prosecutor can obtain critical evidence by resort to judicial process, such as subpoena, pretrial examination of witnesses, DNA-testing order, and discharge of state witnesses.  Hence, it might be a bit too early for the prosecution to throw in the towel during the preliminary investigation. 

Moreover, there is a legal obstacle to the DOJ changing the evidentiary standard to “reasonable certainty of conviction.” The evidentiary standard of probable cause is anchored on a statute, R.A. No. 5180,[4] the law on which the procedure for preliminary investigation under Rule 112 of the Rules of Criminal Procedure is principally based. 

R.A. No. 5180 provides that “[t]he fiscal or state prosecutor shall certify under oath in the information to be filed by him that he has examined the complainant and his witnesses, that on the basis of the sworn statements and other evidence submitted before him there is reasonable ground to believe that a crime has been committed, and that the accused is probably guilty thereof.”[5] This evidentiary standard means that the question to be answered in preliminary investigation is not “Is the respondent guilty or innocent?” but rather “Is the respondent probably guilty and should be held for trial?”[6]  

Hence, in my view, a DOJ administrative issuance will not suffice; in fact, it is arguable if an amendment of Rule 112 of the Rules of Criminal Procedure would do the job.  What is needed would be an amendment of the relevant provisions of R.A. No. 5180 by Congress. 

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[1] Crespo v. Mogul, 151 SCRA 462 (1987).  

[2] Offenses where the penalty prescribed for the offense is at least 4 years, 2 months, and 1 day. 

[3] Section 1, Rule 112, Rules of Criminal Procedure. Italics supplied.  

[4] As amended by P.D. No. 77 and P.D. No. 911. 

[5] Although some portions of R.A. 5180 use the term “prima facie case,” a perusal of the law as a whole shows that the quantum of evidence provided therein is actually probable cause, as shown by the second paragraph of Section 1, which uses the phrase “reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof” (italics supplied).  This is the phrase adopted, with slight modification, in Rule 112 of the Rules of Criminal Procedure. See also 2 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 315-316 (9^th rev. ed., 3^rd printing, 2001). 

[6] WILLARD B. RIANO, CRIMINAL PROCEDURE: THE BAR LECTURE SERIES 185 (2016).