Key LS Personnel

Asof
of March
April 2012
(as
2012)
Director, LS

PCSUPT FRANCISCO A UYAMI JR

Deputy Director, LS

PSSUPT ULYSSES J ABELLERA

Chief of Staff, LS

PSSUPT BARTOLOME C TOBIAS

Chief, Legal Assistance Div:

PSUPT GEORGE L ALMADEN

Chief , Special Cases Div. :

PSUPT ARTHUR LLAMAS

Chief, Administrative &

Resource Mgt. Div

PSUPT ROMAN E LORETO

OIC, Legal Research &

Evaluation Div.

PCINSP LYRA STELLA C VALERA

Supervisor,
Legal Advice 24/7

PSINSP GARRY FRANCO C PUASO

LEGAL ADVISORIES
Monthly Publication of PNP Legal Service
Camp Crame, Quezon City
www.legalservice.org.ph

April
2012

VOLUNTARY SURRENDER AND EXTRA JUDICIAL

CONFESSIONS DURING CUSTODIAL INVESTIGATION
This Legal Advisory focuses on the effects and consequences of
voluntary surrender and extra judicial confessions and lays down the
DOs and DONTs to be observed by our police officers in appreciating
the voluntary surrender of a person claiming to be the perpetrator of a
crime and in taking or accepting extra judicial confessions of suspects
during custodial investigation.

PARA MAGAMPANAN NG TAMA ANG TUNGKULING PULIS,

MAGTANONG.

Statistics gathered from the

LEGAL ADVICE 24/7 show
that six (6%) percent of the
total inquiries received by the
Legal Service in 2011 sought
guidance
on
voluntary
surrender (VS) and extra
judicial confessions (EJC).

6%

Inquiries Received
CY 2011
VS & EJC
Others

VOLUNTARY SURRENDER
Q. What is the value of voluntary surrender in the prosecution of a
crime?

Q. If a person comes to the station and voluntarily surrenders a

weapon and claims that it was used in the commission of a crime,
without saying anything more as to the identity of the perpetrator,
what should police officers do?

A. It is a mitigating circumstance under the Revised Penal Code. If it can be

established during trial that the offender had voluntarily surrendered
himself to a person in authority or his agents (Article 13, paragraph 7,
RPC) and such circumstance is appreciated by the court as mitigating,
the imprisonment penalty imposed by the law for the crime committed
may be reduced by the court.

A. It is also advisable for the police to officially record the fact that an
alleged weapon was voluntarily surrendered by such person at the
station. Again, the official record may be introduced as an admissible
documentary evidence at the preliminary investigation, and even during
trial.
B.

Q. What is the value of voluntary surrender from the perspective of

law enforcement?
A. The voluntary surrender of a suspect, if established by convincing
evidence, will generally negate questions regarding the legality of his
detention.
Q. What are the requisites of voluntary surrender?
A. The requisites of voluntary surrender are as follows:
a. That the offender had not been actually arrested;
b. That the offender surrendered himself to a person in authority or
to the latters agent; and
c. That the surrender was voluntary
(Reyes, The Revised Penal Code, Criminal Law, 2006 Ed., p. 298)

Q. In the course of investigating a crime, if a person comes to the

station and voluntarily surrenders himself claiming to be the
perpetrator, what should police officers do?
A. It is advisable for our police officers to
immediately enter the fact of his
voluntary surrender into the blotter. By
doing so, the blotter becomes an
admissible documentary evidence to
prove that the police did not effect any
arrest but, on the contrary, it was the
suspect who walked into the station. The
entries in the blotter should include the
reasons (e.g. guilty feelings, bothered by
conscience, avoiding shame of being
arrested, to insure personal security, or
persuaded by family) given by such
person which impelled him to voluntarily
surrender.
Moreover, the police officer who recorded such entry into the blotter may
likewise execute an affidavit which may later be introduced in evidence
to serve as basis of his testimony in court.

The fact that such person did not say anything more as to the identity of
the perpetrator should provoke thorough deliberation from the point of
view of criminal investigation. Investigators should be circumspect in
ascertaining whether or not it is plausible for the said weapon to have
been used in the commission of the offense, as claimed, vis-a-vis
empirical data, available physical evidence, sworn statement of
witnesses, or results of forensic examination. Investigators must also
determine how it came to the possession of such person. This can be
elicited through searching questions such as Nakita nyo po ba na ito
ang sandatang ginamit sa krimen? or Paano nyo po nasabi na ito ang
sandatang ginamit kung hindi nyo aktwal na nasaksihan ang krimen?
The voluntary surrender of the alleged weapon used in the commission
of a crime, however, cannot be appreciated as a mitigating circumstance
to benefit such person if he later turns out to be the perpetrator. The law
requires that that the offender must have voluntarily surrendered
himself to a person in authority or his agents. (People of the
Philippines vs Jose De Ramos, CA-GRR No. 15010-R, April 26, 1956)
Q. When is surrender voluntary?
A. To be considered voluntary, the surrender must be spontaneous,
showing the intent of a person to submit himself unconditionally to
authorities, either because:
(a) He acknowledges his guilt, or
(b) He wishes to spare the authorities from the trouble and
expenses necessarily incurred in his search and capture
(People of the Philippines vs. Lagrana, No. -68790, January 23, 1987)

Q: May police officers take custody of a person who voluntarily surrendered

himself and detain him?

EXTRA JUDICIAL CONFESSIONS

DURING CUSTODIAL INVESTIGATION

A. No, if the corpus delicti of the crime is not established.

Q. What is extra judicial confession?

Q. What is the test of spontaneity?

A. It is a declaration of a
person, given outside of
court, acknowledging his
guilt of the offense charged,
or
of
any
offense
necessarily included therein,
which may be used as
evidence against him. (lifted
from Section 33, Rule 130,
Evidence)
Taking or accepting extra
judicial confessions from
suspects during custodial
investigation is governed by
Constitutional provisions on
the Bill of Rights and by the
provisions of RA No. 7438.
VOLUNTARY SURRENDER, ABSENT:

A. The word spontaneous emphasizes the idea of an inner impulse,

acting without external stimulus. The conduct of the accused, and not
his intention alone, after the commission of the offense, determines the
spontaneity of the surrender. (Reyes, The Revised Penal Code,
Criminal Law, 2006 Ed., p. 308)
VOLUNTARY SURRENDER, PRESENT:
JURISPRUDENCE
The accused, after plunging a bolo into
the victims chest, ran toward the
municipal building. Upon seeing a
patrolman, he immediately threw away
his bolo, raised his two hands, offered
no resistance and said to the patrolman
here is my bolo, I stabbed the victim.
Voluntary surrender was appreciated.
(People of the Philippines vs Tenorio, 4
SCRA 700)
The accused did not escape despite
having every opportunity to do so but,
instead, called the police department.
When the authorities arrived at the
scene of the crime, he voluntarily
approached
them
and,
without
revealing his identity, told them that he
will help in the investigation. When
brought to the station as a possible
witness, he immediately confided to the
investigator that he was voluntarily
surrendering and, in the process, also
surrendered the fatal gun used in the
shooting of the victim. It was held that
there was voluntary surrender. (People
of the Philippines vs.Benito, No. L32042, February 13, 1975)

REASONS
There was desire to voluntarily
surrender himself;
The act was spontaneous and not
impelled by an external stimulus
The
utterances
indicated
acknowledgment of guilt

All the actuations of the accused,

when appreciated in totality,
indicated that his intention to
voluntarily surrender was brought
about by an inner impulse and
was not driven by an external
stimulus.
The accused submitted himself to
the authorities unconditionally

Q. The person who voluntarily surrendered would also like to execute

a statement narrating in detail his commission of the crime. What
should the police do?
A. The police should consider such offer as an intention to give an extra
judicial confession in writing, hence, he should observe the requirements
laid down in RA No. 7438.

JURISPRUDENCE
After the shooting incident, the
appellant went to the PC headquarters,
but he only reported the incident.
There was no valid surrender. (People
of the Philippines vs. Rogales, 6 SCRA
830)

The accused went into hiding. When

authorities discovered their hide out,
they surrendered after they realized
that the forces of law were closing in on
them (People of the Philippines vs
Mationg, No. L-33488, March 29, 1982)
or when the accused refused to
surrender to the police until only much
later when they knew they were
already completely surrounded and
there was no more chance of escape,
there was no voluntary surrender.
(People of the Philippines vs. Salvilla,
GR No. 86163, April 26, 1990)

REASONS
He did not actually surrender
himself
Merely reporting the incident
does not evince a desire on his
part to own responsibility for the
killing
Even if, assuming, there was
desire to surrender, mere
intention to surrender, without
actually surrendering, is not
mitigatinG
The motivating factor behind
their surrender was only to
insure their safety
The surrender was just a spurof-the moment thing and there
was no acknowledgment of
criminal responsibility.

Q. What is custodial investigation?

A. As an investigative process, custodial investigation can be traced to
American jurisprudence, the landmark case of Miranda vs Arizona,
where the US Supreme Court elaborated that, custodial interrogation
means 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. (Miranda vs Arizona, 384 U.S. 436)
Custodial investigation presupposes that he is suspected of having
committed a crime and that the investigator is trying to elicit information
or a confession from him. 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. (Jesalva vs. People of the
Philippines, GR No. 187725, January 19, 2011)
In Philippine jurisdiction, custodial investigation includes the practice of
issuing an invitation to a person who is investigated in connection with
an offense he is suspected to have committed. (Section 2, last
paragraph, RA No. 7438)
Q. What are the essential requisites to fall within the meaning of
custodial investigation?
A. There is custodial investigation when:
a. A person has been taken into custody or otherwise deprived of
his freedom of action in any significant way;
b. A law enforcement officer took the said person into custody or
deprived him of his freedom of action; and
c. A law enforcement officer initiated questioning such person in
connection with the commission of an offense.
(Sadili & Pena, Comprehensive Crim Invest Procedure, 1998 Ed., p. 284)

Q. Should a police officer take or accept an oral extra judicial

confession during custodial investigation?
A. No, this is not advisable. An oral extra judicial confession only relayed to
a police officer has limited evidentiary value during trial.
RA No. 7438 provides that any extra judicial 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, elder 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. (Section 2[d])
Q. How may police officers comply with the requirement of RA No.
7438 for them to provide a competent and independent counsel if
the person arrested, detained or under custodial investigation
cannot afford one?

DIRECTORY OF IBP OFFICES

City

PAO-CENTRAL OFFICE
East Avenue, Diliman, Quezon
Tel Nos.:929-9437; 926-3075;
Fax Nos.: 927-6810; 926-2878

PAO- REGION VIII

Bulwagan ng Katarungan
Magsaysay Blvd.,
Tacloban City
Telefax : (053) 325-5381

PAO-NCR
East Avenue, Diliman, QC
Tel No.:924-1397

PAO-ARMM
2nd Floor Konika Bldg corner
4T & MSU Campus, Marawi City
Telefax: (063) 876-0037

PAO-CORDILLERA
ADMIN REGION
Justice Hall, Baguio City 2600
Telefax : (074) 442-5832

PAO-ZAMBOANGA
PENINSULA REGION
Helly Sabal Building, Urro Street,
Pagadian City
Telefax: (062) 215-3851

PAO-REGION-I
Sevilla Center
San Fernando City, La Union
Tel No.(072) 888-2578
PAO-REGION II
Hall of Justice, CARIG,
Tuguegarao City
Telefax : (078) 844-7904
PAO- REGION III
City of San Fernando,
Pampanga
Telefax : (045) 961-2658
Tel No.: (045) 963-5610
PAO-CALABARZON REGION
Pasig City Hall Compound
Tel No./Telefax: 642-09-85
PAO-REGION V
Pearanda Park, Old Albay
District, Legaspi City
Tel No.: (052) 481-2711
PAO- REGION VI
Hall of Justice, Iloilo City
Tel (033) 336-8836;
Fax No.:335-0308
PAO-REGION VII
The CJ Fernan Hall of Justice,
Cebu City
Telefax: (032)253-5859
Fax Nos.:(032) 412-8717;
412-8718

PAO- REGIONAL OFFICE X

Hall of Justice, Hayes Street,
Cagayan de Oro City
Telefax (088) 857-4809
PAO- DAVAO REGION
Hall of Justice, Ecoland, DC
Tel No.:(082)297-8902
PAO-SOCCSKSARGEN
REGION
2nd Floor Medalla Bldg.,
Brgy. Zone IV, No.66 M.H.Del Pilar St,
Koronadal City
Telefax :(083) 520-0015
PAO-CARAGA REGION
2nd Floor. CTP Building Km.4
National Highway, Libertad,
Butuan City
Telefax : (085) 342-1428;
(085) 815-2406
The presence of counsel in any police investigation
of a person for the commission of an offense [is] an
adequate protective device necessary to make the
process of police investigation conform to the
dictates of the privilege against self-incrimination.
His presence would insure that statements made in
the government established atmosphere are not the
product of compulsion. If the accused decides to talk
to his interrogators, the assistance of counsel can
mitigate the danger of untrustworthiness. With a
lawyer present, the likelihood that the police will
practice coercion is reduced, and if coercion is
nevertheless exercise, the lawyer can testify to it in
court. (People of the Philippines vs. Jimenez, 71 SCRA 186)

Q. A person came to the station and told the police officer that he
wants to give a statement about his commission of a crime. He had
no counsel and explained that he cannot afford one. The police
officer also had no means to provide him with a counsel. Is it
proper for the police officer to take the statement of said person?
A. No. Such statement is in the nature of an extra judicial confession. RA
No. 7438 provides that, when giving a statement about his commission
of a crime, such person has the right to be assisted by counsel. This
right should be explained to him by the police officer. The police officer
must make sure such person understands this right. The law also
requires such person to sign his extra judicial confession in the presence
of his counsel. Otherwise, such extra judicial confession shall be
inadmissible as evidence in any proceeding. (Section 2[d])
Q. What should the police officer do if such person insists?
A. The police officer could only advise such person that he must first waive
his following rights:
- right to have a competent and independent counsel,
preferably of his own choice;
- right to be provided with a counsel, if he cannot afford the
services of one
- right to be assisted by counsel at all times;

Q. After a valid waiver, may such person already sign his extra
judicial confession?
A. Yes, but the signing should be in the presence of his counsel or in the
latters absence, upon a valid waiver, and in the presence of any of the
parents, elder 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.

TIPS TO POLICE OFFICERS WHEN TAKING

DOWN EXTRA JUDICIAL CONFESSIONS
1.
In taking down extra judicial confessions, police officers
should quiz the suspect by asking several clear questions broken down into
short inquiries.
2.
A long question followed by a monosyllabic answer does
not satisfy the requirements of the law that the accused be informed of his
rights under the Constitution and our laws. (People of the Philippines vs.
Galit, 135 SCRA 473).
xxx
I. TANONG:

Ipinagbibigay-alam ko sa inyo ang inyong mga

karapatan sa ilalim ng Saligang-Batas ng hindi
kayo magbigay ng isang salaysay, na hindi rin
kayo maaaring piliitn or saktan at pangakuan
upang magbigay ng naturang salaysay, na
anuman ang inyong sasabihin sa pagsisiyasat
na ito ay maaaring gamitin laban sa inyo sa
anumang usapin na maaaring ilahad sa
anumang hukuman o tribunal dito sa Pilipinas,
na sa pagsisiyasat na ito ay maaaring
katulungin mo ang isang manananggol at
kung sakaling hindi mo kayang bayaran ang
isang mananangol ay maaaring bigyan ka ng
isang ng NBI. Ngayon at alam mo na ang mga
ito, nakahanda ka bang magbigay ng isang
kusang-loob na salaysay sa pagtatanong na
ito?

SAGOT:

Opo.

- right to be assisted by counsel during the execution

of his extra judicial confession
- right to be assisted by counsel during the signing
of such extra judicial confession
The waiver itself should be in writing. An oral waiver shall have no effect.
It should be signed by such person. And the signing should be done also
in the presence of his counsel.
Section 2[e] of RA No. 7438 provides that any waiver by a person
arrested, detained under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be in writing and
signed by such person in the presence of his counsel; otherwise the
waiver shall be null and void and of no effect.
Q. To whom may police officers coordinate requests for assistance of
counsel?
The police officer may coordinate with the different chapters of the
Integrated Bar of the Philippines (IBP) to request for the assistance of a
counsel who will assist such person during the preparation of the waiver
and be present during the signing thereof.

xxx

CAVEAT!
An extrajudicial confession made by an accused shall not be sufficient
ground for conviction, unless corroborated by evidence of corpus delicti.
(Section 3, Rule 133, Evidence)
Corpus Delicti means the body or substance of the crime. In a primary
meaning, it is the fact that a crime has been actually committed. In a
secondary meaning, it is the subject of the crime and its visible effect.
(Sadili & Pea, Comprehensive Criminal Investigation Procedure, 1998 Ed. p. 297)

TIPS TO POLICE OFFICERS WHEN EXPLAINING

THE RIGHT TO BE ASSISTED BY COUNSEL
DURING CUSTODIAL INVESTIGATION
1.
Police officers should EXPLAIN to the person arrested,
detained or under custodial investigation that he has the right to be informed
of his rights. One of these is his right to have a competent and independent
counsel preferably of his own choice, guaranteed by the Constitution. He
also has the right to be assisted by such counsel, at all times, as provided
under RA No. 7438.
Ibig ko po na ipagbigay alam sa inyo na karapatan ninyong
mabigyang kaalaman tungkol sa inyong mga karapatan sa
ilalim ng batas at mapagpaliwanagan tungkol dito.
Naiintindihan nyo po ba ito?
2.
Police officers must ENSURE THAT HE UNDERSTANDS
his right to be informed of his rights before enumerating, one by one, his
rights during custodial investigation.
3.
Such person must be given ample OPPORTUNITY TO
PROCURE THE SERVICES OF A COUNSEL of his own choice whom he
considers as competent. No custodial investigation can be conducted
unless it be in the presence of a counsel. (Agpalo, Handbook on Criminal
Procedure, 2001 Ed., p 301). Any confession of the person or any document
signed by him expressly or impliedly admitting the commission of a crime,
without having been assisted by his lawyer, is inadmissible in evidence.
(People of the Philippines vs Campos, 202 SCRA 387)

4.
The counsel he chooses or, if he cannot afford one, the
counsel provided to him shall BE ALLOWED TO CONFER PRIVATELY
with him. This should also be explained by police officers to the person
arrested, detained or under custodial investigation.
By doing so, the police officer will not render illusory his right to
remain silent, with the understanding that anything he would say might be
used as evidence against him. By doing so, such person may request the
police officer to allow him to privately confer with his counsel if, in the
course of the questioning, he chooses to exercise his right to remain silent.
The person arrested must be informed that he may indicate, in any
manner at any time or stage of the process, that he does not wish to be
questioned with warning that once he makes such indication, the police may
not interrogate him anymore if the same has been commenced or the
interrogation must cease if it has already begun. (People of the Philippines
vs. Mahinay, 302 SCRA 544)

Naiintindihan nyo po ba ito?

5.
Whether such person has a lawyer or not, police officers
must INFORM HIM THAT NO CUSTODIAL INVESTIGATION IN ANY
FORM SHALL BE CONDUCTED, except in the presence of his counsel or
when valid waiver has been made. (People of the Philippines vs. Mahinay,
302 SCRA 544)