WHAT IS CUSTODIAL INVESTIGATION?

Custodial investigation refers to any questioning initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way.
WHAT DOES CUSTODIAL INVESTIGATION PRESUPPOSE?
This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a
confession from him.
WHEN DOES THE RULE ON CUSTODIAL INVESTIGATION BEGIN TO APPLY?
The rule begins to operate at once, as soon as the investigation ceases to be a general inquiry into an unsolved crime, and
direction is aimed upon a particular suspect who has been taken into custody and to whom the police would then direct
interrogatory questions which tend to elicit incriminating statements.
SUPPOSE THE SUSPECT WENT TO THE POLICE STATION AND NARRATED EVENTS FREELY? IS HE
CONSIDERED UNDER POLICE INVESTIGATION?
No.
The assailed statements herein were spontaneously made by petitioner and were not at all elicited through questioning. It was
established that petitioner, together with his cousin Fiscal Jayona, personally went to the police station and voluntarily made the
statement that Leticia jumped out of his vehicle at around 12:30 a.m. of September 9, 1992. The RTC and the CA did not,
therefore, err in holding that the constitutional procedure for custodial investigation is not applicable in the instant case.
RIGHTS
(1) The rights of an accused person under in-custody investigation are expressly enumerated in Sec. 12, Art. III of the
Constitution, viz:
(a)Any person under investigation for the commission of an offense shall have the right to be informed of his rights to remain
silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel;
(b)No torture, force, violence, intimidation or any other means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of detention are prohibited;
(c)Any confession or admission in violation of this or Sec. 17 (Self-Incrimination Clause) hereof shall be inadmissible in
evidence against him;
(d)The law shall provide for penal and civil sanctions for violation of this section as well as compensation to aid rehabilitation of
victims of torture or similar practice, and their families.

(2) Under RA 7834, the following are the rights of persons arrested, detained or under custodial investigation:
(a)Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel;
(b)Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any
person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his right to
remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and independent counsel by the investigating officer;

(c)The custodial investigation report shall be reduced to writing by investigating officer, provided that before such report is
signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately
explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known
to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever;
(d)Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and
signed by such person in the presence of his counsel or in the latters absence, upon a valid waiver, and in the presence of any of
the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest
or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any
proceeding;
(e)Any waiver by person arrested or detained under the provisions of Art. 125 of the Revised Penal Code or under custodial
investigation, shall be in writing signed by such person in the presence of his counsel; otherwise such waiver shall be null and
void and of no effect;
(f)Any person arrested or detained or under custodial investigation shall be allowed visits by his or conferences with any member
of his immediate family, or any medical doctor or priest or religious minister chosen by him or by his counsel, or by any national
NGO duly accredited by the Office of the President. The persons immediate family shall include his or her spouse, fianc or
fiance, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece and guardian or ward.

(3) Three rights are made available by Sec. 12(1):

(a)The right to remain silent Under the right against self-incrimination in Sec. 17, only an accused has the absolute right to
remain silent. A person who is not an accused may assume the stance of silence only when asked an incriminatory question.
Under Sec. 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may
not

be

used

against

him

(People

vs.

Alegre

and

Gordoncillo,

94

SCRA

109);

(b)The right to counsel Example of those who are not impartial counsel are (1) Special counsel, private or public prosecutor,
counsel of the police, or a municipal attorney whose interest is adverse to that of the accused; (2) a mayor, unless the accused
approaches him as counselor or adviser; (3) a barangay captain; (4) any other whose interest may be adverse to that of the
accused

(People

vs.

Tomaquin,

GR

133188,

July

23,

2004);

(c)The right to be informed o his rights the right guaranteed here is more than what is shown in television shows where the
police routinely reads out the rights from a note card; he must also explain their effects in practical terms (People vs. Rojas, 147
SCRA 169). Short of this, there is a denial of the right, as it cannot then truly be said that the person has been informed of his
rights

(People

vs.

Nicandro,

141

SCRA

289).

(4) Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into
custody otherwise deprived of his freedom of action in any significant way. The right to custodial investigation begins only when
the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect
has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating
statements (Escobedo vs. Illinois, 378 US 478; People vs. Marra, 236 SCRA 565). It should be noted however, however, that
although the scope of the constitutional right is limited to the situation in Escobedo and Marra, RA 7438 has extended the
guarantee to situations in which an individual has not been formally arrested but has merely been invited for questioning
(People vs. Dumantay, GR 130612, May 11, 1999; People vs. Principe, GR 135862, May 2, 2002).

DEAN RIANO EVIDENCE FINALS REVIEWER and LAST MINUTE TIPS

by Bimby and Klowee

1.

Memorize Falsus in uno falsus in omnibus

Falsus in uno vs. Falsus in Omnibus means false in one thing, false in everything
*interpretation is not strict
*While the witnesses may differ in their recollections of an incident, it does not necessarily follow from
their disagreements that all of them should be disbelieved as liars and their testimonies completely
discarded. It is not a positive rule of law. The witness must have a conscious and deliberate intention to
falsify a material point.

2.

Distinguish Factum Probans vs. Factum Probandum

Factum Probandum
Ultimate Facts
Hypothetical

a.
b.

Factum Probans
Material evidencing the proposition
Existent.

Factum probandum is the fact or proposition to be established

Factum Probans the facts or material evidencing the fact or proposition to be established
*Example: If P claims to have been injured by the negligence of D who denies having been negligent, the
negligence of D and the causal connection between such negligence, and the injuries of P taken as a
whole = Factum Probandum
The evidence offered by P, whether it be object, documentary or testimonial, constitute the materials to
prove the liability of D. The totality of the evidence to prove the liability refers to the Factum Probans
*If the defendant admits his negligence in his answer to the complaint, there is no more need to prove
negligence. Hence, negligence ceases to be a factum probandum in this case.
*if the factum probandum signifies the fact or proposition to be established, then matters of 1) judicial
notice, 2)conclusive presumptions, 3)judicial admissions cannot qualify as parts of the factum probandum
of a particular case, because such matters need not be established or proven.

*Factum probandum in civil case refers to the elements of a cause of action from the point of view of the
plaintiff and the elements of the defense from the point of view of the defendant.
*In criminal cases factum probandum includes all matters that the prosecution must prove beyond
reasonable doubt in order to justify a conviction.
3.

4.
a.

Can Rules of Evidence be used in non-judicial proceedings?

The rules of evidence, being parts of the Rules of Court, apply only to judicial proceedings (Sec. 1 Rule
128)
*Sec.4. In what cases not applicable. These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceeding, and other cases not herein provided for, except by
analogy or in a suppletory character and whenever practicable and convenient.
Ex. Not applicable in Administrative bodies, CSC, Petition for naturalization, labor cases

Best Evidence Rule (Original document rule) (primary evidence rule)

Concept
i. Original of the document must be produced; When the subject matter of the inquiry is the contents of
a document , no evidence shall be admissible other than the original document itself,
b. Exceptions to the rule
i. When the original has been lost, or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror;
ii. When the original is in the custody or under the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable notice;
iii. When the original consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the fact sought to be established from them is only the general result
of the whole
iv. When the original is a public record in the custody of a public officer or is recorded in a public office.
*Involves only the contents of a writing. The rule cannot be invoked unless the contents of a writing is the
subject of judicial inquiry, in such case; the best evidence is the original writing itself.
*Where the issue is the execution or existence of the document or the circumstances surrounding its
execution, the best evidence rule does not apply and the testimonial evidence is admissible.
*Where the issue is only as to whether such document was actually executed, or exists, or on the
circumstance relevant to or surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissible.
*The best evidence rule applies only when the purpose is to establish the terms of a writing. When the
evidence introduced concerns some external facet about a writing like its existence, execution or delivery
without reference to its terms, the rule cannot be invoked. The subject of inquiry under the best evidence
rule it the CONTENTS of a writing, NOT THE TRUTH thereof. Where the truth is in issue, the hearsay rule
will now be involved.
c. Illustrative applications
i. 1994 Bar At the trial of ace for the violation of the Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked bills used in the buy-bust operation. Ace objects to the introduction
of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary
evidence in lieu of the original is the photocopy admissible in evidence?
1. Yes, the photocopy of the bills being object evidence is admissible in evidence without violation of the
best evidence rule. The rule applies only to documentary evidence and not to object evidence.
*The reason for the best evidence rule is the prevention and detection of fraud.

*The best evidence rule may be waived if not raised in the trial
*If the original be presented in evidence
1) Find a legal excuse for failure 2) present secondary evidence
If secondary evidence is to be offered in evidence, like a copy, the proponent has to lay the basis for the
admission of the copy of the document.
Excuses for not presenting the original
1. When the original has been lost or destroyed or cannot be produced in court, without bad faith on the
part of the offeror;
2. When the original is in the custody or under the control of the party against whom the evidence is offered
and the latter fails to produce it after reasonable notice
3. When the original consists of numerous accounts or other documents cannot be examined in

4.

a.
b.
c.
d.

court without great loss of time and the fact sought to be establish is only the general result of
the whole; and
When the original is a public record in the custody of a public officer or is recorded in a public
office.
*How to lay the basis for presenting secondary evidence:
a) The offeror must prove the execution and existence of the original document;
b) The offeror must show the cause of its unavailability
Loss, destruction, or unavailability
c) The offeror must show that the unavailability was not due to his bad faith
Correct order of proof is as follows Existence, execution, loss, and contents.
Due execution and authenticity of the document must be proved either: a) by anyone who saw
the document executed or written, or by evidence of the genuiness of the signature or
handwriting of the maker.
When original is in the custody or control of the adverse party:
Laying the basis requires:
The original exists.
That the said document is under the custody or control of the adverse party;
That the proponent of secondary evidence has given the adverse party reasonable notice to
produce the original document
That the adverse party failed to produce the original document despite the reasonable notice.
*Waiver: Failure to object to the parole evidence presented by the adverse party operates as a
waiver of the protection of the rule.
* The loan may be proved by the photocopy as long as A lays the basis for the introduction of
secondary evidence, to wit: a) the existence and due execution of the original, and b) the loss of
the original without bad faith on his part. (Sec. 5, Rule 130)

Distinction between Best Evidence and parol Evidence

Best Evidence Rule
Parol Evidence Rule
1.
Establishes a preference for the original
Presupposes the original is available
document over secondary evidence thereof.
2.
Precludes the admission of secondary
Precludes the admission of other evidence to
evidence if the original document is available.
prove the terms of a document other than the
contents of the document itself for the purpose
of varying the terms of the writing.
3.
Can be invoked by any litigant to an action
Can be invoked only by the parties to the

whether or not said litigant is a party to the

document involved.
4.
Applies to all forms of writing
5.

a.
b.
c.
d.

document and their successors in interest.

Applies only to written contracts and wills.

Define Parol Evidence

*Applies to agreements and will. Parol evidence means offering extrinsic evidence that would
modify, explain or add to the terms of the written agreement. BUT it is allowed if any of the
following are shown:
An intrinsic ambiguity, mistake, or imperfection in the written agreement;
The failure of the written agreement to express the true intent and agreement of the parties;
The validity of the written agreement;
The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.
And only if it is put in issue in the pleadings.
*The rule applies ONLY to contracts which the parties have decided to set forth in writing. When
n the terms of an agreement is merely oral, the parol evidence rule should not be applied.
*Parol evidence does not apply in oral agreements, public writing, private writing, express trust
(although parol evidence applies to wills.

6.

Testimonial Evidence Adverse party Read Sec. 6. Loss, Destroyed, Unavailable

Originals (Sec 5)
*Showing that the original document is in the custody or under the control of the adverse party
does not ipso facto authorize the introduction of secondary evidence to prove its contents. The
party who seeks to present secondary evidence must lay a basis for its introduction.
Laying the basis:

1)
2)
3)

That the original exists;

That the document is under the custody or control of the adverse party;
That the proponent of secondary evidence has given the adverse party reasonable notice to
produce the original document;
4)
That the adverse party failed to produce the original document despite the reasonable notice.
How to notify: motion for the production of the original or by subpoena duces tecum, provided
that the party in custody has sufficient time to produce it.
After the foundational requirement for the introduction of secondary evidence have been
complied with, secondarily evidence may now be presented as in the case of loss. This mean
that the contents of the document may now be proven by
a copy of the document a recital of its contents in some authentic document
By testimony of a witness in the order stated (Sec. 5 Rule 130)
7.
a.

Testimonial evidence topics not found in Rule 130

132 (Sec. 3) Right of witnesses (Sec .6) Cross Exam and Sec. 11 Impeachment of witnesses

i.
Are the rights of the accused violated in case of compulsory HIV
testing? No. There is no testimonial compulsion involved by extracting blood from the
accused for testing purposes. Thus, there is no violation of the right to privacy and the right to
be presumed innocent.
ii.
Should DNA evidence be admitted? Yes. The right against self incrimination
applies only to testimonial evidence. Extracting blood samples and cutting strands of hair do not
involve testimonial compulsion but purely mechanical acts which neither requires discretion or
reasoning. (Tijing v. Court of Appeals.
iii.
The right against self incrimination does not apply to physical and mechanical
act. It applies only to testimonial compulsion which is not the case under the facts.
iv. Degrading questions although degrading a witness must answer the
question if the degrading answer a) is the very fact in issue; or b) refers to a fact from which the
fact in issue would be presumed. (Rule 132)
8.

What are the elements of a dying declaration? #3 exam

*Must comply with the following foundational elements
1. That the declaration is one made by a dying person;
2. That the declaration was made by said dying person under the consciousness
Of impending death
3. That the declaration refers to the cause and circumstances surrounding the death
of the declarant and not of anyone else;
4. That the declaration is offered in a case where the declarants death is the subject
of inquiry;
5. The declarant is competent as a witness had he survived;
6. The declarant should have died.
Note: must refer to the death of the declarant, not merely injuries.
*If the declarant survives HIS DECLARATION MAY BE ADMISSIBLE AS PART OF THE RES
GESTAE.
*The former rule embodied in Supreme Court decisions, which declared that a dying declaration
is offered in a criminal case for homicide, murder, or parricide wherein the declarant is the
victim, no longer holds true. As amended
Parts of the Res Gestae
Literally means things done. Res Gestae is the startling event of which the
spontaneous statement is only a part of.
How to impeach testimony of a witness, definition
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