Philippines: DOJ Circulars introduce new evidentiary standard for pursuing criminal cases, and new case build-up procedures

In brief

The Department of Justice (DOJ) issued a series of Circulars that modify criminal procedure in the Philippines, by introducing the "reasonable certainty of conviction" standard when pursuing criminal cases, and implementing procedures that ensure proactive involvement by prosecutors during case build-up.


In more detail

Through a series of Department Circulars (DC) — DC Nos. 008, 008-A, 016, and 020 series of 2023 — the DOJ made important changes to the process involved in instituting criminal cases in the Philippines. Some notable effects to the present procedure are the following:

First, criminal cases before first level courts and those covered by DC 020 may no longer be filed in court if there is "no reasonable certainty of conviction." Given how this standard is defined by these DCs (see discussion below), prosecutors may treat it as a higher/stricter standard than the existing standard of "probable cause." The Supreme Court defines probable cause simply as "the existence of facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."

Second, criminal cases pending before the first-level courts are susceptible to dismissal, upon re-evaluation of the handling prosecutor, based on the "reasonable certainty of conviction" standard.

Third, criminal cases covered by DC 020 need to hurdle an extra step, before progressing to preliminary investigation or inquest. 

The "reasonable certainty of conviction" standard

DC 008 directs prosecutors to assess criminal cases pending before the first-level courts (e.g., MTCs/MTCCs/MeTCs) — criminal cases where imprisonment does not exceed six years — and immediately file a motion to withdraw information if, after assessment, a prosecutor determines that there is no "reasonable certainty of conviction" based on (a) evidence at hand, (b) availability of witnesses and (c) continued interest of private complainants. According to DC 008, the DOJ's policy direction is "to only file cases with a reasonable certainty of conviction," which DC 008 defines as "cases supported by prima facie evidence." DC 008-A was issued three days later, although it is an exact reproduction of the contents of DC 008.

DC 016 provides guidelines and clarifications to DC 008:

  • 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."
  • DC 008 does not apply to criminal cases intimately related to cases that are with the Regional Trial Courts and Court of Appeals. DC 008 applies to criminal cases before first-level courts — whether governed by regular or summary procedure — and (a) have had no considerable movement for three months or more; (b) the complainant or his witnesses have repeatedly failed to appear without valid reason; or (c) where the material evidence is not available or can no longer be produced despite the complainant's earnest efforts.
  • The handling prosecutor is directed to exert efforts to communicate with the complainant to ascertain interest in pursuing the case and existence of evidence — with a note that without such evidence, the case shall be recommended for dismissal. The handling prosecutor will then make an assessment — to determine whether there is "reasonable certainty of conviction" — and make a recommendation to the city/provincial prosecutor.
  • If a Motion to Withdraw Information is filed in court, the complainant may file a Comment/Opposition in response.

DC 016 says that "no case shall henceforth be filed with the MTCs, MTCCs, and MeTCs if there is no reasonable certainty of conviction for the same."

Case build-up procedures introduced prior to preliminary investigation and inquest

DC 020 changes the procedure for instituting certain types of criminal cases in the Philippines, by introducing an evaluation stage prior to preliminary investigation. DC 020 clarifies that this new procedure applies to heinous crimes (i.e., murder, kidnapping, rape, qualified bribery), capital offenses, and violations of the Dangerous Drugs Act, Anti-Money Laundering Act, and Anti-Terrorism cases — all of which are cases cognizable by the Regional Trial Courts (RTCs). The process for such cases covered by DC 020 is as follows:

Evaluation stage

  • Upon receipt of a criminal complaint, a prosecutor has 10 days to determine if the evidence proves the essential elements of the crime charged, and there is "reasonable certainty of conviction" so as to warrant docketing for preliminary investigation.
  • If there is "reasonable certainty of conviction," the prosecutor will certify the case for preliminary investigation, and the case will go through the usual preliminary investigation process.
  • If there is no "reasonable certainty of conviction," the prosecutor will proceed to case build-up.

Case build-up

  • During case build-up, the prosecutor will notify the complainant of the results of their evaluation, advise what evidence is lacking, and direct the complainant to secure/submit such evidence.
  • If despite this there is still insufficient evidence to warrant a "reasonable certainty of conviction," the prosecutor will terminate the case, without prejudice to a future refiling.

Preliminary investigation

  • DC 020 does not provide for new procedures for preliminary investigation. However, DC 020 says that the purpose of preliminary investigation is "to determine whether a crime has been committed and whether there is a prima facie case against respondent and a reasonable certainty of conviction based on the available documents, witness/es, real evidence and the like."

When a person is arrested without a warrant (for the cases covered by DC 020), DC 020 says that a prosecutor shall first evaluate the documents to see if the evidence proves the essential elements of the crime charged, before inquest proceedings are conducted. DC 020 then says, "In all inquest proceedings covered by these Circulars, prosecution offices must ensure that all important pieces of evidence are submitted by the LEA to make sure that no suspect who is lawfully arrested without warrant shall be released for further investigation." Thus, it would appear that "release for further investigation" — where an individual arrested without warrant is released for lack of sufficient evidence — will no longer happen, so long as the inquest prosecutor finds the warrantless arrest to be valid. It would appear, too, that such an individual may continue to be detained, pending case build-up for preliminary investigation.

Why these are relevant to you

In view of the above changes, parties to an ongoing criminal case covered by DC 008/016 may consider re-evaluating their evidence (if a complainant) or defense (if an accused), from the perspective of the "reasonable certainty of conviction" standard.

Moreover, individuals/entities that intend to institute criminal cases covered by DC 020 should, aside from considering the "reasonable certainty of conviction" standard, expect public prosecutors to be more pro-active in ensuring the existence of sufficient evidence, before a case is considered for preliminary investigation.

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