Briefer on Probable Cause

[RESEARCH ON PROBABLE CAUSE] December 15, 2016

Determination of probable cause in the OMBUDSMAN and in the SANDIGANBAYAN: EXECUTIVE and JUDICIAL determination There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. 1 Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.2 The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. 3 Thus, absent a finding that an information is invalid on its face or that the prosecutor committed manifest error or grave abuse of discretion, a judge‟s determination of probable cause is limited only to the judicial kind or for the purpose of deciding whether

the arrest warrants should be issued against the accused.4 Judiciary’s Standing Policy: Noninterference by courts of the investigatory and prosecutor powers The Sandiganbayan and all courts for that matter should always remember the judiciary‟s standing policy on noninterference in the Office of the Ombudsman‟s exercise of its constitutionally mandated powers. This policy is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well, considering that otherwise, the functions of the courts will be grievously hampered by innumerable petitions regarding complaints filed before it, and in much the same way that the courts would be extremely swamped if they were to be compelled to review the exercise of discretion on the part of the prosecutors each time they decide to file an information in court or dismiss a complaint by a private complainant.5 A similar ruling is made in Redulla v. The Hon. Sandiganbayan (First Division), et al.,6 where the Supreme Court said: This Court has almost always adopted, quite aptly, a policy of non-interference in the exercise of the Ombudsman‟s constitutionally mandated powers. This rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of 4 5

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2 3

People of the Philippines vs. Jessie B. Castillo and Felicito R. Mejia, G.R. No. 171188, 19 June 2009, citing Paderanga v. Drilon, G.R. No. 96080, 19 April 1991, 196 SCRA 86, 90. Id., citing Roberts, Jr. v. Court of Appeals, G.R. No. 113930, 05 March 1996, 254 SCRA 307, 350. Id., citing Ho v. People, G.R. Nos. 106632 & 106678, October 9, 1997, 280 SCRA 365, 380.

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People of the Philippines vs. Jessie B. Castillo and Felicito R. Mejia, G.R. No. 171188, 19 June 2009. Id.,, citing Go v. Fifth Division, Sandiganbayan, G.R. No. 172602, April 13, 2007, (521 SCRA 293) and Andres v. Cuevas, G.R. No. 150869, 09 June 2005, 460 SCRA 32 TEOTIMO M. REDULLA v. THE HON. SANDIGANBAYAN (FIRST DIVISION), THE OFFICE OF THE OMBUDSMAN, and THE OFFICE OF THE SPECIAL PROSECUTOR, G.R. No. 167973 28 February 2007

Ut In Omnibus Glorificetur Dei | ATTY. ODESSA GRACE E. GONZAGA

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the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions x x x with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they were compelled to review the exercise of discretion on the part of the fiscals, or prosecuting attorneys, each time they decide to file an information in court or dismiss a complaint by a private complainant. 7

2. The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making the determination of probable cause. It is the report, the affidavits, the transcripts of stenographic notes, if any, and all other supporting documents behind the prosecutor‟s certification which are material in assisting the judge in his determination of probable cause; and

Significance of the OMBUDSMAN’s certification in the SB’s determination of probable cause.

3. Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. Even if the two inquiries be made in one and the same proceeding, there should be no confusion about their objectives. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the prosecutor.

May the SB rely solely on the Ombudsman’s certification of probable cause? NO. In Sales v. Sandiganbayan (4th Division), et al.8, the Supreme Court had the occasion to rule that: “x x x [I]t was patent error for the Sandiganbayan to have relied purely on the Ombudsman‟s certification of probable cause given the prevailing facts of this case much more so in the face of the latter‟s flawed report and one-sided factual findings. In the order of procedure for criminal cases, the task of determining probable cause for purposes of issuing a warrant of arrest is a responsibility which is exclusively reserved by the Constitution to judges.9

Stated differently, while the task of conducting a preliminary investigation is assigned either to an inferior court magistrate or to a prosecutor, 11 only a judge may issue a warrant of arrest. When the preliminary investigation is conducted by an investigating prosecutor, in this case the Ombudsman, 12 the determination of probable cause by the investigating prosecutor cannot serve as the sole basis for the issuance by the court of a warrant of arrest. This is because the court with whom the information is filed is tasked to make its own independent determination

People v. Inting10 clearly delineated the features of this constitutional mandate, viz: 1. The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes this determination;

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9 10

Citing Nava v. Commission on Audit, 419 Phil. 544, 553 (2001). Reynolan T. Sales v. Sandiganbayan (4th Division), Ombudsman, People of the Philippines and Thelma Benemerito, G.R. No. 143802, 16 November 2001. Article III, Section 2, Constitution. 187 SCRA 788, 792-793 [1990].

11 12

Section 2, Rule 112, 2000 Revised Rules on Criminal Procedure. See Section 11 (4), R.A. No. 6770 otherwise known as the Ombudsman Act of 1989.

of probable cause for the issuance of the warrant of arrest. Indeed –

improbabilities in the prosecution evidence. 13 Certainly –

„x x x [T]he Judge cannot ignore the clear words of the 1987 Constitution which requires x x x probable cause to be personally determined by the judge x x x not by any other officer or person.

“x x x probable cause may not be established simply by showing that a trial judge subjectively believes that he has good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional protection would be demeaned and the people would be secure in their persons, houses, papers and effects only in the fallible discretion of the judge.14 On the contrary, the probable cause test is an objective one, for in order that there be probable cause the facts and circumstances must be such as would warrant a belief by a reasonably discreet and prudent man that the accused is guilty of the crime which has just been committed.15

xxx

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The extent of the Judge‟s personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge‟s examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be brief or as detailed as the circumstances of each case may require. To be sure, the Judge must go beyond the Prosecutor‟s certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the courts probing questions when the circumstances so require. xxx

xxx

May a determinative finding on the presence or absence of the elements of the offense charged be made during a determination of probable cause for the purpose of issuance of warrant of arrest? NO. In People vs. Castillo & Mejia,16 the Supreme Court held that: “ x x x [I]t was clearly premature on the part of the Sandiganbayan to make a determinative finding prior to the parties presentation of their respective evidence that there was no bad faith and manifest partiality on the respondents part and undue injury on the part of the complainant. x x x [T]he presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be best passed upon after a full-blown trial on the 17 merits.”

x x x‟

We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judges sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.

Can the SB require that the prosecution present all the evidence needed to secure Duty of the SB in determining probable cause, when faced with conflicting evidence; Good faith is not enough. What the Sandiganbayan should [do when] faced with x x x a slew of conflicting evidence from the contending parties, [is] to take careful note of the contradictions in the testimonies of the complainant‟s witnesses as well as the

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Allado v. Diokno, 232 SCRA 192 (1994). Beck v. Ohio, 379 U.S. 89, 85 S Ct. 223, 13 L Ed. 2d 142 (1964). Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968). People of the Philippines vs. Jessie B. Castillo and Felicito R. Mejia, G.R. No. 171188, 19 June 2009 Id., citing Go v. Fifth Division, Sandiganbayan, G.R. No. 172602, 13 April 2007 (521 SCRA 270).

in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.21

the conviction of accused upon filing of the information? NO. In People vs. Castillo & Mejia,18 the Supreme Court held that: "x x x [I]t would be unfair to expect the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter. The reason is found in the nature and objective of a preliminary investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof, and should be held for trial. 19 his, as we said is the standard. x x x

Are the entire records during the preliminary investigation required to be submitted and examined during the judicial determination of probable cause? NO. Cojuangco, Jr. v. Sandiganbayan (First Division)20 teaches that: “It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor‟s recommendation, as Respondent Court did 18 19 20

People of the Philippines vs. Jessie B. Castillo and Felicito R. Mejia, G.R. No. 171188, 19 June 2009 Id., citing People v. Court of Appeals, G.R. No. 126005, 21 January 1999 (301 SCRA 475, 488). Eduardo M. Cojuangco, Jr. v. Sandiganbayan (First Division) and People of the Philippines, G.R. No. 134307, 21 December 1998.

Motion for Judicial Determination of Probable Cause

Is a motion for judicial determination of probable cause necessary? NO. In Leviste v. Hon. Alameda, et al.,22 it was held that to move the court to conduct a judicial determination of probable cause is a mere superfluity, for with or without such motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor and the supporting evidence. In fact, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.23 What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. But the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall (1) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may already make a personal determination of the existence of probable cause; and (2) if 21 22

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Citing Ho v. People, 280 SCRA 380, 382 (1997). Jose Antonio C. Leviste v. Hon. Elmo M. Alameda, Hon. Raul M. Gonzalez, Hon. Emmanuel Y. Velasco, Heirs of the late Rafael de las Alas, G.R. No. 182677, 03 August 2010 Leviste, citing Baltazar v. People, G.R. No. 174016, 28 July 2008 (560 SCRA 278, 293).

he is not satisfied that probable cause exists, he may disregard the prosecutor‟s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.24 (emphasis supplied)

NO. In Ramiscal, Jr., v. Sandiganbayan (4th Division),28 the Supreme Court ruled: We agree with the Sandiganbayan‟s ruling that the Revised Rules of Criminal Procedure do not require cases to be set for hearing to determine probable cause for the issuance of a warrant for the arrest of the accused before any warrant may be issued. Section 6, Rule 112 mandates the judge to personally evaluate the resolution of the Prosecutor (in this case, the Ombudsman) and its supporting evidence, and if he/she finds probable cause, a warrant of arrest or commitment order may be issued within 10 days from the filing of the complaint or Information; in case the Judge doubts the existence of probable cause, the prosecutor may be ordered to present additional evidence within five (5) days from notice. The provision reads in full:

The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of arrest of the accused before any warrant may be issued.25 Petitioner thus cannot, as a matter of right, insist on a hearing for judicial determination of probable cause. Certainly, petitioner cannot determine beforehand how cursory or exhaustive the judge's examination of the records should be since the extent of the judge‟s examination depends on the exercise of his sound discretion as the circumstances of the case require. 26 In one case, the Court emphatically stated:

SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.29

The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must determine the presence or absence of probable cause within such periods. The Sandiganbayan‟s determination of probable cause is made ex parte and is summary in nature, not adversarial. The Judge should not be stymied and distracted from his determination of probable cause by needless motions for determination of probable cause filed by the accused.27 (emphasis and italics supplied)

Do the rules require that a hearing be set for the judicial determination of probable cause?

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Borlongan, Jr. v. Pea, G.R. No. 143591, 23 November 2007 (538 SCRA 235). Leviste, citing Ramiscal, Jr. v. Sandiganbayan, G.R. Nos. 169727-28, August 18, 2006, 499 SCRA 375, 398. Vice Mayor Abdula v. Hon. Guiani, 382 Phil. 757, 776 (2000). Id., at 399.

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Brig. Gen. (Ret.) Jose S. Ramiscal, Jr., v. Sandiganbayan (4th Division) and People of the Philippines, G.R. Nos. 169727-28, 18 August 2006. In Administrative Matter No. 05-8-26-SC dated 26 August 2005, which took effect 03 October 2005, the rule reads: SEC. 5. When warrant of arrest may issue. – (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally

The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must determine the presence or absence of probable cause within such periods. The Sandiganbayans determination of probable cause is made ex parte and is summary in nature, not adversarial. The Judge should not be stymied and distracted from his determination of probable cause by needless motions for determination of probable cause filed by the accused.

evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information. Rule 1, Section 2, of the Revised Internal Rules of the Sandiganbayan provides: The Rules of Court, resolutions, circulars, and other issuances promulgated by the Supreme Court relating to or affecting the Regional Trial Courts and the Court of Appeals, insofar as applicable, shall govern all actions and proceedings filed with the Sandiganbayan.