TOPIC 4

The Prosecution Pillar

Introduction

Within the Philippines legal setting, prosecution occupies a unique position in our CJS. The
prosecutor serves as lawyer of the government in criminal cases and automatically considered an officer of
the court at the same time a member of the Department of Justice (DOJ), which is under the executive
branch of the government, thus independent from the judiciary.
All criminal actions either commenced by complaint or by information shall be prosecuted under the
direction and control of a public prosecutor. The prosecution occupies the second pillar of the criminal
justice system. While the police initiate the process to make the criminal justice system works, it is the
prosecutor who decides in his discretion whether to formally set in motion the cycle of criminal justice and
control the criminal case before it reaches the court for final proper dispensation of justice.
In the Philippines, the public prosecutor is actively involved in the investigation of crimes and can
commence an investigation upon receiving report from a law – enforcement agency or a private party.
Coordination between the prosecutors and the police in principle ensures that the evidence collected
stands up to judicial scrutiny even at the early stages of a case. Courts rely heavily on the evidence
submitted by the prosecution panel, which comprises the work of both the police and prosecutor. The panel
is also obliged to ensure that the witnesses appear in court as required, evidence is stored correctly and that
there are no undue delays from the side of the prosecution that may upset the hearing schedule.
Although the prosecutor has direct control in prosecuting all criminal actions private prosecutors are
also allowed once they get approval from the Chief State Prosecutor (CSP) or a Regional State Prosecutor
(RSP) (Revised Rules of Criminal Procedure, rule 110. Section 5). Once given permission, a private law
practitioner can act either as lead prosecutor or assistant prosecutor. This authority will last until the trial is
completed, unless it is revoked.

The NATIONAL PROSECUTION SERVICE (Composition and powers)

PD. 1275 of 1978 established the NPS under direct supervision of the Secretary of the DOJ. It is empowered
to investigate and prosecute all crimes described by the RPC.

REPUBLIC ACT No. 10071 - An Act Strengthening and Rationalized the National Prosecution Service

Power of the Secretary of Justice (Sec 4, RA 10071)

The power vested in the Secretary of Justice includes authority to act directly on any matter involving
national security or a probable miscarriage of Justice within the jurisdiction of the prosecution staff, regional
prosecution office, and the provincial prosecutor or the city prosecutor and to review, reverse, revise, modify
or affirm on appeal or petition for review as the law or the rules of the Department of Justice (DOJ) may
provide, final judgements and orders of the prosecutor general, regional prosecutors, provincial prosecutors,
and city prosecutors.

For purposes of determining the cases which may be acted on, directly by the Secretary of Justice, the phrase
"national security" shall refer to crimes against national security as Provided under the Penal Code, Book II,
Title 1, and other cases involving acts of terrorism as defined under the Human Security Act under Republic
Act No. 9372.

1
The Prosecution Staff and its Functions (Sec 4, RA 10071)
There shall be in the Office of the Secretary of Justice a prosecution staff that shall be composed of
prosecuting officers in such number as herein below determined. It shall be headed by a Prosecutor General
who shall be assisted by the following:
(a) Five (5) Senior Deputy State Prosecutors;
(b) Five (5) Deputy State Prosecutors;
(c) Thirty five (35) Senior Assistant State prosecutors;
(d) Eighty (80) Assistant State Prosecutors; and
(e) Twenty (20) Prosecution Attorneys.

The Prosecution Staff, which shall be under the control and supervision of the Secretary of Justice, shall
have the following functions:
1. Assist the secretary of Justice in the exercise of his/her appelate jurisdiction;
2. Conduct the preliminary investigation and prosecution of criminal cases involving national security, those
for which task forces have been created and criminal cases whose venues are transferred to avoid
miscarriage of justice, all when so directed by the Secretary of Justice as public interest may require;
3. Act as counsel for the People of the Philippines in any case involving or arising from a criminal complaint
investigated by any of its prosecutors and pending before any trial court;
4. Investigate administrative charges against prosecutors, other prosecution officers and members of their
support staff;
5. Prepare legal opinions on queries involving violations of the Revised Penal Code and special penal laws;
6. Monitor all criminal cases filed with the Office of the Prosecutor General; maintain an updated record of
the status of each case, and adopt such systems and procedures as will expedite the monitoring and
disposition of cases.

The Regional prosecution Office (Sec 6, RA 10071)

There shall be at each administrative region, except the National Capital Region (NCR), a Regional
Prosecution Office to be headed by a Regional Prosecutor who shall be assisted by one (1) Deputy Regional
Prosecutor, one (1) Senior Assistant Regional Prosecutor, three (3) Assistant Regional Prosecutors, and one
(1) Prosecution Attorney.

Powers and Functions of the Regional Prosecutor (Sec 7, RA 10071)

The Regional Prosecutor shall, under the control and supervision of the Secretary of Justice, have the
following powers and functions:
a. Implement policies, plans, programs, memoranda, orders, circulars and rules and regulations of the DOJ
relative to the investigation and prosecution of criminal cases in his/her region;
b. Exercise immediate administrative supervision over all provincial and city prosecutors and other
prosecuting officers for provinces and cities comprised within his/her region;
c. Prosecute any case arising within the region;
d. When so delegated by the Secretary of Justice, resolve with finality appeals from or petitions for review
of judgements and orders of provincial and city prosecutors and their assistants within the region in cases
where the offenses charged are cognizable by the municipal trial court.
e. Designate a prosecutor from any office of the provincial or city prosecutor within the region as Acting
Provincial or City Prosecutor to investigate and prosecute a case in instances where parties question the
partiality or bias of a particular city or provincial prosecutor or where the city or provincial prosecutor
voluntarily inhibits himself/herself by reason of relationship to any of the parties within the sixth (6th)
civil degree of consanguinity or affinity;

2
The Provincial Prosecutor or City Prosecutor (Sec 8, RA 10071)
There still be for each province or city a Provincial Prosecutor or city Prosecutor, as the case may be, who
shall be assisted by at least one (1) Deputy Provincial Prosecutor or Deputy City Prosecutor and such
number of assistant and associate prosecutors as provided for hereinafter. Provided, however, That whenever
a new province or city is created, it shall have a provincial prosecutor or city prosecutor, a deputy provincial
prosecutor or deputy city prosecutor and such number of assistant and associate prosecutors as there are
court branches therein at the ratio of two (2) prosecutors for each branch of regional trial court, one (1)
prosecutor for each branch of metropolitan trial court or municipal trial court in cities, and one (1)
prosecutor for every two (2) municipal trial courts in municipalities or branches thereof municipal circuit
trial courts.

Powers and Functions of the Provincial Prosecutor or City Prosecutor (Sec 9, RA 10071)
The provincial prosecutor shall:
a. Be the law officer of the province or city, as the case may be;
b. Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of penal
laws and ordinances within their respective jurisdictions, and have the necessary information or
complaint prepared or made and filed against the persons accused. In the conduct of such investigations
he or any of his/her assistants shall receive the statements under oath or take oral evidence of witnesses,
and for this purpose may by subpoena summon witnesses to appear and testify under oath before him/her,
and the attendance or evidence of an absent or recalcitrant witness may be enforced by application to any
trial court;
c. Have charge of the prosecution of all crimes, misdemeanors and violations of city or municipal ordinances
in the courts at the province or city and therein discharge all the duties incident to the institution of
criminal actions, subject to the provisions of second paragraph of Section 5 hereof.

PRELIMINARY INVESTIGATION
Is an inquiry or proceeding for the purpose of determining whether there is a sufficient ground to
engender to a well-founded belief that a crime cognizable to the RTC has been committed and that the
respondent is probably guilty thereof and should be held for trial.

PURPOSES OF PRELIMINARY INVESTIGATION

1. To protect the innocent against, hasty, oppressive and malicious prosecution
2. To secure the innocent from open and public accusation of trial, from trouble expense and anxiety of a
public trial.
3. To protect the state from useless and expensive trials.

Officers authorized to conduct Preliminary Investigation (Revised Rules on Criminal Procedure Sec. 2
Rule 112)
(a) Provincial or City Prosecutors and their assistants;
(b) National and Regional State Prosecutors; and
(c) Other officers as may be authorized by law.

In terms of procedures in the preliminary investigation process, the following are followed:
• Filing of the sworn, complaint – affidavit together with supporting documents;
• NO GROUND to continue with the Inquiry dismissal of the complaint; WITH GROUND to
continue with the inquiry subpoena respondent (s).
• Submission by the respondent (s) of the sworn counter – affidavit within ten (10) days from receipt
of the subpoena;
• Investigating office may set a hearing to propound clarificatory questions.
3
 • Thereafter, the investigating officer issues the resolution (recommendatory) within ten (10) days to
the city/provincial prosecutor/chief state prosecutor
• City/provincial prosecutor/chief state prosecutor acts on the recommendation within (5) days.

Preliminary Investigation: When Required?

As stated earlier, and in accordance with Rule 112 of the Rules of Court, Preliminary investigation
is an inquiry or proceeding to determine whether 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.
Except, as provided in section 7 of the Rule, a preliminary investigation is required to be conducted
before the filing of a complaint or information for an offense where the penalty prescribed by law is at least
four (4) years, two (2) months and one (1) day without regard to the amount of fine.

How Preliminary Investigation is conducted?

Preliminary investigation shall be conducted in the following manner:
• The complaint shall state the address of the respondent and shall be accompanied by the affidavits of
the complainant and his witnesses, as well as other supporting documents to establish probable
cause. They shall be in such number of copies as required by respondents, plus two (2) copies for
the official file.
• The affidavits shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or in their absence or unavailability, before a notary public, each of
whom must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
• Within ten (10) days after filing of the complaint, the investigating officer shall either dismiss it if
he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.
• The respondent shall have the right to examine the evidence submitted by the complainant that he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent,
and these shall be made available for examination or copying by the respondent at his expense.
• Objects as evidence need not be furnished a party but shall be made available for examination,
copying or photographing at the expense of the requesting party.
• Within ten (10) days from receipt of the subpoena, the complaint and supporting affidavits and
documents, the respondent shall submit his counter – affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counter – affidavits shall be subscribed and
sworn to and certified as provided in paragraph (a) of this section, with copies thereof /furnished by
him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a
counter – affidavit.
• If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter – affidavits
within the ten (10) days period, the investigating officer shall resolve the complainant based on the
evidence presented by the complainant.
• The investigating officer may set a hearing if there are facts or issues to be clarified from a party or a
witness. The parties can be present at the hearing but without the right to examine or cross –
examine. They may, however, submit to the investigating officer questions which may be asked to
the party or witness concerned.
• The hearing shall be held within ten (10) days from submission of the counter – affidavits and other
document or from the expiration of the period for their submission. It shall be terminated within
five (5) days.

4
 • Within ten (10) days after the investigation, the investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for trial.

Prosecution Protects the Rights of Accused

The Prosecution, being an officer of the legal system, has to ensure that the rights of accused as
stated in Rule 115 are being protected.
In all criminal prosecutions, the accused shall be entitled to the following rights:
• To be presumed innocent until the contrary is proved beyond reasonable doubt.
• To be informed of the nature and cause of the accusation against him.
• To be present and defend in person and by counsel at every stage of the proceedings from
arraignment to promulgation of the judgment.
• To testify as a witness in his own behalf but subject to cross – examination on matters covered by
direct examination. His silence shall not in any manner prejudice him.
• To be exempt from being compelled to be a witness against himself.
• To confront and cross – examine the witnesses against him at the trial.
• To have compulsory, process issued to secure the attendance of witnesses and production of other
evidence in his behalf.
• To have speedy, impartial and public trial.
• To appeal in all cases allowed and in the manner prescribed by law.

Duties of Investigating Fiscal / Prosecutor during the conduct of Preliminary Investigation

If the investigation fiscal finds cause to hold the respondent for trial, he shall prepare resolution and
corresponding information.
He shall certify under oath that he, or as shown in the record, an authorized officer has personally
examined the complaint and his witnesses that there is a reasonable ground to believe that the accused was
informed of the complaint and of the evidence submitted against him and that he was given an opportunity
to submit converting evidence.
Otherwise, he shall recommend dismissal of the complaint. In either case he shall forward the
records of the case including the resolution to the provincial or City Fiscal or chief state prosecutor within 5
days from his resolution. The latter shall take appropriate action thereon within 10 days from receipt there
on, immediately informing the parties of said action.

PROBABLE CAUSE: Object of Preliminary Investigation

Paramount to the prosecutor’s role is to establish the initial stages that a “probable cause” exists that
a crime has been committed. This requires close coordination with investigating agencies – the Philippine
National Police (PNP), the National Bureau of Investigation, and quasi – judicial bodies empowered to
conduct investigation.

What is Probable Cause?

Probable Cause Is the existence of such facts circumstances as would exile the beliefs, in a reasonable
mind, acting on the facts within the knowledge of the prosecutor, that a person charged is probably guilty of
the crime he was prosecuted. As a ground for issuance of a warrant of arrest.

Probable Cause is such facts and circumstances that would lead a reasonably discreet and prudent man to
believe that the person sought to be arrested has committed an offense. As a protection against false
prosecution and arrest.

Probable Cause is the knowledge of facts actual or apparent, strong, strong enough to justify a reasonable
man in the belief that he has a lawful grounds for arresting the accused.
5
 Where a prosecutor finds probable cause, the respondent must be informed of the case. This is done by
way of a subpoena or formal notice giving the respondent an opportunity to reply to the allegation within ten
working days from the time of receipt of the notice, unless an extension is sought.

INQUEST PROCEDURE: A Prosecutors Duty

Inquest procedure is an inquiry made by the duty prosecutor to determine the legality of the arrest made
especially those arrests made without warrant.
Inquests proceeding follow in cases where persons are arrested without the benefit of an arrest order or
warrant, or are caught in the act of committing a criminal offense. The purpose of the inquest proceedings in
these cases is that while the state acknowledges the law enforcers’ authority to arrest and detain persons
without a warrant, the state must also ensure that these persons are not unlawfully detained, and that they are
not denied due process. The inquest establishes whether the evidence is sufficient enough to seek court
approval to keep the person in detention.
The inquest requires the prosecutors to resolve the complaint the police filed in a prescribed period,
which varies depending on the gravity of the offense. Cases punishable with light penalties must be
resolved in 12 hours; those punishable by less grave penalties within a period of 18 hours; and those
punishable by afflictive or capital penalties, within 36 hours. If the inquest prosecutor fails to complete the
proceedings in the prescribed period then the person must be released.

Prosecutorial Bodies/Officer
• Office of the City or Provincial Prosecutors
• State Prosecutors under the National Prosecution Service (PD 1275)
• Office of the Special Prosecutor
• Office of the Ombudsman
• Judge Advocates General’s Office for the Military

PROSECUTION OF OFFENSES UNDER THE RULES OF COURT (Rule 110)

Institution of Criminal Actions
Criminal actions shall be instituted as follows:
• For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by
filing the complaint with the proper officer for the purpose of conducting the requisite preliminary
investigation.
• For all other offenses, by filing the complaint or information directly with the Municipal Trial
Courts and Municipal Circuit Trial Courts; or the complaint with the office of the prosecutor. In
Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor
unless otherwise provided in their charters.
• The institution of the criminal action shall interrupt the running of the period of prescription of the
offense charged unless otherwise provided in special laws.

Complaint or Information
Complaint or Information shall be in writing, in the name of the People of the Philippines and
against all persons who appear to be responsible for the offense involved.

Complaint (defined) – complaint is a sworn written statement charging a person with an offense, subscribed
by the offended party, any peace officer, or other public officer charged with the enforcement of the law
violated.

6
Information (defined) – information is an accusation in writing charging a person with an offense,
subscribed by the prosecutor and filed with the court.

Intervention of the Offended Party in Criminal Action

Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to
Rule 111, the offended party may intervene by counsel in the prosecution of the offense.

Institution of Criminal and Civil actions (Rule 111)

When a criminal action is instituted, the civil action for the recovery of civil liability arising from
the offense charged shall be deemed instituted with the criminal action unless the offended party waives the
civil action, reserves the right to institute it separately or institute the civil action prior to the criminal action.
The reservation of the right to institute separately the action shall be made before the prosecution
starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity
to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or
information, the filing fees therefore shall constitute a first lien on the judgment awarding such damages.
• Where the amount of damage, other than actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.
• Except as otherwise provided in the Rules, no filing fees shall be required for actual damages.
• No counterclaim, cross – claim or third party complaint may be filed by the accused in the criminal
case, but any cause of action which could have been the subject thereof may be litigated in a
separate civil action.
• The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.
• Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the
filing fees based on the amount of the check involved, which shall be considered as the actual
damages claimed. Where the complaint or information also seeks to recover liquidated, moral,
nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based
on the amounts alleged therein. If the amounts are not so alleged but any of these damages are
subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a
first lien on the judgment.
• Where the civil action has been separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in accordance with section 2 of this
Rule governing consolidation of the civil and criminal actions.