The New DOJ Preliminary-Investigation Standard: What Changes

What changed under Department Circular No. 015

The Supreme Court's decision in Meking v. Remulla reproduces the operative standard.

In substance, the prosecutor must consider whether the evidence presented establishes a prima facie case that, if left uncontradicted, is sufficient to establish all elements of the offense and support conviction. The framework expressly directs attention to whether the evidence is admissible, credible, capable of preservation and presentation, and sufficient to identify the persons responsible. It also expressly includes a summary evaluation of evidence submitted by the respondent through the counter-affidavit.

A plausible accusation is not enough to answer that inquiry. Identify how the evidence supports the elements and whether it can be used to prove them.

The Supreme Court upheld the framework because preliminary investigation is an executive prosecutorial function rather than a court proceeding. It also clarified that the DOJ rules govern prosecutors' preliminary investigations and inquests, not judicial procedure once the case is before a court.

What complainants must prove earlier

For a complainant, the narrative needs supporting evidence.

I suggest preparing the complaint with the possible prosecution in mind.

Identify each element and the evidence supporting it. Confirm who can authenticate the documents and who has personal knowledge. Preserve electronic records, check disputed signatures and distinguish what a witness saw or heard personally from what another person reported. Then test the respondent’s likely explanation.

Apply that review carefully to business complaints.

A breach of contract, unreturned money, altered corporate record, missing property or unauthorized employee transaction may warrant investigation.

But the economic loss does not establish every element of a crime. Identify the particular offense and prove the facts it requires.

The decision to file should follow that assessment.

What respondents should attack

A respondent should not assume the new standard makes a complaint easy to defeat.

A complaint supported by competent evidence still requires a properly supported response.

Identify the specific gap or contradiction in the complainant’s evidence.

Is an essential element unsupported? Does a key witness lack personal knowledge? Is a document unauthenticated? Does the complainant's chronology contradict contemporaneous records? Is there a legitimate transaction that explains the movement of funds? Does the documentary record contradict an affidavit? Has the complainant confused contractual nonperformance with deceit that must exist at a legally relevant time?

Address those issues in the counter-affidavit and attach the evidence supporting the response.

That matters because Department Circular No. 015 expressly makes the respondent's counter-affidavit part of the prosecutor's evaluation of reasonable certainty of conviction.

The length of the counter-affidavit is less important than its explanation of the evidentiary defect. Show which element is unsupported and why the available evidence does not prove it.

Why admissibility and preservation now matter more

Check admissibility and preservation when the case involves digital or corporate records.

The available material may include screenshots, exported chats, CCTV, accounting entries, emails, access logs, scanned signatures, spreadsheets and cloud files.

Having a copy does not establish what it proves.

Identify the source and a witness who can explain it. Check whether the original or a reliable source remains available and whether metadata or system information should be preserved. Record any forwarding, cropping, recompression, alteration or loss of context.

Use the same care when interviewing witnesses.

Separate what the witness personally knows from what another employee said. Do not turn hearsay, speculation or management’s preferred explanation into a statement of personal knowledge.

Adding more documents will not cure a missing element or an incompetent witness.

How companies should handle an internal case before filing

For a corporate complaint, use the internal investigation to establish what can be proved before drafting the allegation.

Define the investigation’s scope, preserve relevant data, identify conflicts and separate witnesses where appropriate. Prepare the chronology and source documents, including facts both supporting and contradicting the suspected offense.

Preserve the same discipline when the company or its officers may become respondents.

Do not delete messages, alter files, coordinate witness accounts or circulate speculative accusations. These actions can create further evidence and credibility problems.

Preserve the record and assess it as it stands.

The standard is higher, but it is not a trial

Preliminary investigation remains different from a criminal trial.

The Supreme Court expressly treated it as an executive prosecutorial process and upheld the DOJ rules on that basis. Judicial guilt still requires adjudication in court under the applicable criminal procedure and constitutional protections.

Do not describe the rule as requiring the DOJ to prove guilt beyond reasonable doubt before filing a case.

The inquiry concerns whether the evidence can credibly and admissibly support conviction under the prescribed standard, taking the respondent’s evidence into account.

Prepare for that inquiry early.

Before a subpoena arrives, preserve the relevant documents, identify witnesses with personal knowledge and test each element. Be candid about what the evidence supports and what remains unproved.

An element-by-element investigation file

This framework concerns the DOJ-NPS process within the rules’ scope. It does not replace proof beyond reasonable doubt at trial or authorize a prosecutor to determine guilt as a court.