(This entry was posted by Judge Don Navarro at his site (“Got Cause?”) and reproduced here with his express permission.)
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One motion quickly gaining favour among lawyers after the 2000 Rules of Criminal Procedure came into effect is the “Motion for Determination of Probable Cause” to hold the accused for trial.

The 2000 Rules made it clear that every person is entitled to a determination by a JUDGE that there exists cause to charge him with a crime before giving due course to any information (the document that charges the accused with a crime). Previously, judges relied largely on the determination of probable cause by the Public Prosecutor (District Attorney to those of you from the United States of A) even though the Philippine Supreme Court had already expressly declared the right to be of a constitutional nature.

Believing that this imposed an additional burden on the poor, overworked and underpaid judges, I took up my beef with former Court Administrator (later Commission on Elections Chairman and subsequently Solicitor General) Alfredo Benipayo who patiently explained that the right could not be denied any accused under the constitution.

Well, once the word “constitutional” is mentioned, any further argument is negated, so I shut up and went to work determining probable cause in every information that came my way.

The determination of probable cause must be made by the Judge before he issues a warrant of arrest (based on the records transmitted to the Court from the prosecutor) or any other process that might bring the accused into the custody of the Court. If the Judge is not satisfied with the prosecutor’s findings, he may either require the prosecutor to submit additional evidence or dismiss the case outright. This, even before a warrant is issued.

This is why I take issue with the “Motion for Determination of Probable Cause”.

Since a judge already has the burden of making the determination BEFORE he issues the Warrant of Arrest, the Motion has a dubious place in procedure. The issuance of the warrant carries with it the presumption that the judge had already made a determination that probable cause exists to bring the accused to trial. Giving due course to such a motion would be an express admission that the judge had been negligent in performing his duties and open him up to administrative sanction.

Of course, this should not stop lawyers from filing such a motion should the record of the prosecutor (the record of preliminary investigation) be so wanting in (competent) evidence to establish probable cause. In such cases, though, the judge may once again be open to sanction. This, however, should be the exception, rather than the rule.