Probable cause in issuing Warrants of Arrest

In a rape case, private complainant failed to appear 4 consecutive orders to take the witness stand in order to satisfy the judge for the existence of probable cause for the issuance of a warrant of arrest.

Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that the complainant and her witnesses failed to take the witness stand. He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause “to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”

Is Judge Carbonell correct?


SUGGESTED ANSWER:


No. Judge Carbonell committed grave abuse of discretion. The Supreme Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses.

“We reiterated the above ruling in the case of Webb v. De Leon, where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.”

fellester.blogspot.com It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. 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 – is the function of the investigating prosecutor.

True, there are cases where the circumstances may call for the judge’s personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez, we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted. (AAA vs. Carbonell, G.R. No. 171465, June 8, 2007)