In a recent stream of issuances, the Department of Justice (“DOJ”) promulgated new guidelines on the assessment of pending criminal cases before first-level courts, and the reinforced role of the National Prosecution Service in criminal investigations.
Department Circular Nos. 008 and 008-A – for cases pending before first-level courts
Aiming to unclog court dockets, the DOJ issued Department Circular (“D.C.”) Nos. 008 and 008-A mandating prosecutors handling cases in Municipal Trial Courts (“MTCs”), Municipal Trial Courts in Cities (“MCTCs”), and Metropolitan Trial Courts (“MeTCs”) to carefully assess all cases and determine if each has a reasonable certainty of conviction based on the evidence in hand, availability of witnesses, and continued interest of private complainants.[1] If there exists no reasonable certainty of conviction, D.C. No. 008 orders the handling prosecutor to immediately withdraw the information.[2]
Reasonable certainty of conviction and other parameters
The DOJ’s separate issuance, Department Circular No. 016, defined reasonable certainty of conviction as follows:
Section 2. Reasonable Certainty of Conviction. 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 [the] accused, shall be sufficient to establish all the elements of the crime or offense charged, and consequently warrant a conviction beyond reasonable doubt.[3]
While D.C. Nos. 008 and 008-A apply to cases that are pending in court, D.C. No. 016 applies to complaints filed before prosecutor offices for the conduct of preliminary investigation. Under D.C. No. 016, prosecutors are restrained from filing cases in court if a reasonable certainty for conviction is prima facie not present.[4]
A more proactive involvement – Department Circular No. 020 (D.C. No. 020)
The DOJ supplemented D.C. No. 016 with D.C. No. 020 issued on 31 March 2023. The subsequent circular called for the proactive involvement of prosecutors in the investigation of crimes, particularly in the case build-up stage where they may require, assist, or otherwise cooperate with the complainants and/or law enforcement agencies (LEAs).
Worth noting in D.C. No. 020 is its express recognition of reasonable certainty of conviction as the “quantum of proof” to be established during the preliminary investigation, viz:
Section 2. Quantum of Proof. In carrying out such role, prosecutors must ensure the existence of a prima facie case and a reasonable certainty of conviction based on available documents, witnesse/s, real evidence and the like. Prima facie evidence is such status of evidence which on its own and if left uncontroverted, is sufficient to establish all the elements of a crime.[5]
Significantly, D.C. No. 020 also expanded the list of cases where a reasonable certainty of conviction must exist before a case may be filed. Thus, apart from cases cognizable by MTCs, MCTC, and MeTCs, reasonable certainty of conviction must also be established if the crime charged is a "heinous crime," as the term is defined in the circular. The reasonable certainty of conviction also applies to capital offenses punishable by reclusion perpetua or life imprisonment (such as violations of the “Dangerous Drugs Act,” the “Anti-Money Laundering Act,” the “Anti-Terrorism Act of 2020,” or the “Terrorism Financing Prevention and Suppression Act of 2012”). Under Philippine laws, these crimes are generally within the jurisdiction of the Regional Trial Courts.[7]
Evaluation, case build-up, and preliminary investigation
To emphasize the proactive role of prosecutors in preliminary investigations, D.C. No. 20 mandates an initial evaluation of criminal complaints received by prosecution offices from private individuals, or referred for investigation by LEAs. Thus, within ten (10) working days from receipt of the complaint or referral, the prosecution office shall evaluate the same to determine if they contain the evidence to prove the essential elements of the crime charged,[8] and in the affirmative, the evaluating prosecutor shall certify that there is a sufficient ground to conduct a preliminary investigation. The complaint or referral shall then be docketed for preliminary investigation in accordance with Rule 112 of the Revised Rules of Criminal Procedure.[9]
On the other hand, if the complaint or referral is not supported by sufficient evidence, it shall be referred back to the private complainant or the referring LEA, along with the following: (1) a report on the result of the evaluation; (2) advice about the lacking evidence; and (3) a directive to secure and submit the said lacking evidence. For this purpose, the complainant or referring LEA, or other concerned LEA/s may be subpoenaed to appear for a conference or to produce necessary documents if the assisting prosecutor deems it necessary or advantageous under the circumstances.[11] If the complainant or referring LEA fails to remedy the insufficiency within a reasonable period, the case shall be closed and terminated without prejudice to refiling.[12]
Revisiting the current framework
From the foregoing, it could be observed that the DOJ issuances codified and reinforced the prevailing rules on the quantum of proof required in preliminary investigation.
In Forietrans Manufacturing Corp. vs. Davidoff Et. Cie SA & Japan Tobacco Inc., the High Tribunal restated the established rule on probable cause:
Probable cause, for purposes of filing a criminal action, is defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof. It does not require an inquiry into whether there is sufficient evidence to procure conviction. Only prima facie evidence is required or that which is, on its face, credible and sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense; and which, if not rebutted or contradicted, will remain sufficient.[13]
It is well-settled that the determination of probable cause is essentially an executive function that is lodged, at the first instance, with the public prosecutor and, ultimately, to the Secretary of Justice. The prosecutor and the Secretary of Justice have a wide latitude of discretion in the conduct of preliminary investigation, and their findings with respect to the existence or non-existence of probable cause are generally not subject to review by the Court.[14]
While the recent D.C.s use the term “reasonable certainty of conviction” as the quantum of proof in preliminary investigation, it can be surmised that such definition did not replace, but rather complemented the very essence of probable cause. This is bolstered by Section 2 of D.C. No. 16 which—similar to the prevailing parameters for probable cause—requires a prima facie case based on the evidence at hand for the existence of reasonable certainty of conviction.
This postulate is further affirmed by the policy of D.C. No. 20 defining the conduct of preliminary investigation as an executive function wherein the prosecutor exercises investigative or inquisitorial powers, the sole purpose of which is to determine whether a crime has been committed and whether there is prima facie case against the respondent and a reasonable certainty of conviction based on the available documents, witnesses, real evidence, and the like.[15]
Hence, despite the change in semantics, it could be argued that the quantum of proof in preliminary investigation remains the same, i.e., probable cause or a well-founded belief that a crime has been committed and the respondent is probably guilty thereof. However, DOJ’s recent circulars remind us that the definition of probable cause must be read in conjunction with the enhanced roles of prosecutors to assess their cases and determine whether such quantum of proof has been established to warrant the filing of a criminal information against the respondent. More importantly, these new rules shall also be read in light of the overarching policy of the State on resolving criminal cases: the decongestion of court dockets, and ultimately, the efficient and effective administration of justice.
We write this article to provide an overview of the DOJ’s new rules on the quantum of proof required in criminal investigations. This article should not be taken as a form of legal advice. Should you need legal assistance in criminal proceedings, please send an email to ryan@romanolaw.ph.
[1] Department Circular No. 008, Department of Justice, 10 February 2023; Department Circular No. 008-A, Department of Justice, 13 February 2023
[2] Id.
[3] Section 2, Department Circular No. 016, Department of Justice, 24 February 2023
[4] Id, Section 9.
[5] Section 2, Department Circular No. 020, Department of Justice, 31 March 2023
[6] Id, Section 3
[7] Id.
[8] Id, Section 5.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Forietrans Manufacturing Corp. vs. Davidoff Et. Cie SA & Japan Tobacco Inc, G.R. No. 197482, 6 March 2017
[14] Unilever Philippines, Inc., vs. Michael Tan, G.R. No. 179367, 29 January 2014
[15] Section 1, D.C. No. 20, supra
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