Under the present Rule 112 of the Rules of Criminal Procedure, in criminal cases requiring a preliminary investigation,1 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.”2 Note that probable cause requires only probable guilt, not reasonable certainty of guilt.
However, under DOJ Circular No. 16 (24 February 2023) and DOJ Circular No. 20 (31 March 2023), the DOJ changed the evidentiary standard in preliminary investigation from “probable cause” to a stricter “reasonable certainty of conviction.” The new evidentiary standard applies to preliminary investigation of (1) criminal cases falling within the jurisdiction of the first-level courts,3 and (2) criminal cases mentioned in Circular No. 20, that is, heinous crimes, drugs offenses, terrorism and terrorism financing, money laundering, and offenses punishable by reclusion perpetua or life imprisonment.4 With respect to preliminary investigation of offenses not covered by Circulars No. 16 and 20, the evidentiary standard of probable cause should still apply.
Reasonable certainty of conviction is defined in Section 2 of DOJ Circular No. 16 as follows:
“There is reasonable certainty of conviction when a prima facie case exists 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.”5
It is quite clear that “reasonable certainty of conviction” provides for a higher evidentiary threshold than “probable cause.” Under the new standard, probable guilt is not enough, the evidence must warrant a conviction beyond reasonable doubt. This standard skirts dangerously close to proof beyond reasonable doubt, which is the quantum of proof for conviction in a criminal trial.
The reasons for the change in the evidentiary standard, that is, to decongest and unclog court dockets, are debatable enough.6 To my mind, however, the more critical inquiry is whether the DOJ can validly change the evidentiary standard in the first place. My view is that the DOJ cannot.
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. 5180,7 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.”8 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?”9
While the determination of probable cause in preliminary investigation is a function within the exclusive sphere and competence of the executive department, this competence does not include the power to change the evidentiary standard itself of preliminary investigation which is laid down by law. The executive cannot substitute its evidentiary standard for that provided for by statute, no matter how worthy its intentions may be.
Preliminary investigation while not a constitutional right is a substantive right.10 It implicates due process,11 to which both the respondent and the complainant are entitled to. To change the evidentiary standard in preliminary investigation to a more demanding one would be to deprive the complainant of a substantive right granted to him by law. This cannot be done by the executive but only by the legislature.
-oOo-
- Offenses where the penalty prescribed for the offense is at least 4 years, 2 months, and 1 day (Section 1, Rule 112, Rules of Court). ↩︎
- Section 1, Rule 112, Rules of Court. ↩︎
- Section 9, DOJ Circular No. 16, 24 February 2023. ↩︎
- Section 3, DOJ Circular No. 20, 31 March 2023. ↩︎
- Italics supplied. ↩︎
- See my 23 March 2023 blog, May the Evidentiary Standard of Probable Cause in Preliminary Investigation be Changed by the DOJ to One of “Reasonable Certainty of Conviction”? – Legisperit ↩︎
- An Act Prescribing a Uniform System of Preliminary Investigation by Provincial and City Fiscals and their Assistants, and by State Attorneys or their Assistants (1967). As amended by P.D. No. 77 (1972) and P.D. No. 911 (1976). ↩︎
- Italics supplied. Although some portions of R.A. No. 5180 use the term “prima facie case,” a perusal of the law as a whole shows that the quantum of proof 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 (9th rev. ed., 3rd printing, 2001). ↩︎
- WILLARD RIANO, CRIMINAL PROCEDURE: THE BAR LECTURE SERIES 185 (2016). ↩︎
- Duterte v. Sandiganbayan, 289 SCRA 721, 737-738 (1998). ↩︎
- Ibid. ↩︎
