RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION

The rights of persons under custodial investigation are enshrined in Article III,
Section 12 of the 1987 Constitution, which provides:

Sec. 12
(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right 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.

(2) No torture, force, violence, threat, 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.

(3) Any confession or admission obtained in violation of this or section 17 hereof

(right against self-incrimination) shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violation of this
section as well as compensation for the rehabilitation of victims of tortures or
similar practices, and their families. [emphasis supplied.]

In the Philippines, the right to counsel espoused in the Miranda doctrine was based
on the leading case of People v. Galit[16] and Morales, Jr. v. Enrile,[17] rulings
subsequently incorporated into the present Constitution. The Miranda doctrine under
the 1987 Charter took on a modified form where the right to counsel was
specifically qualified to mean competent and independent counsel preferably of the
suspect’s own choice. Waiver of the right to counsel likewise provided for stricter
requirements compared to its American counterpart; it must be done in writing, and
in the presence of counsel.

Verily, it may be observed that the Philippine law on custodial investigation has
evolved to provide for more stringent standards than what was originally laid out
in Miranda v. Arizona. The purpose of the constitutional limitations on police
interrogation as the process shifts from the investigatory to the accusatory seems
to be to accord even the lowliest and most despicable criminal suspects a measure
of dignity and respect. The main focus is the suspect, and the underlying mission
of custodial investigation – to elicit a confession.

The phrase “preferably of his own choice” does not convey the message that the
choice of a lawyer by a person under investigation is exclusive as to preclude
other equally competent and independent attorneys from handling the defense;
otherwise the tempo of custodial investigation will be solely in the hands of the
accused who can impede, nay, obstruct the progress of the interrogation by simply
selecting a lawyer who, for one reason or another, is not available to protect his
interest.[22]

We ruled in People v. Continente[23] that while the choice of a lawyer in cases

where the person under custodial interrogation cannot afford the services of
counsel – or where the preferred lawyer is not available – is naturally lodged in
the police investigators, the suspect has the final choice as he may reject the
counsel chosen for him and ask for another one. A lawyer provided by the
investigators is deemed engaged by the accused when he does not raise any objection
against the counsel’s appointment during the course of the investigation, and the
accused thereafter subscribes to the veracity of the statement before the swearing
officer.
TESTIMONIAL COMPULSION ONLY:
Appellant then asseverates that there was a violation of his rights while under
custodial investigation, in light of the Miranda doctrine, when allegedly the
police investigators unceremoniously stripped him of his clothing and personal
items, and the same were later introduced as evidence during the trial. The Court
is not persuaded. The protection of the accused under custodial investigation,
which is invoked by appellant, refers to testimonial compulsion. Section 12,
Article III of the Constitution provides that such accused shall have the right to
be informed of his right to remain silent, the right to counsel, and the right to
waive the right to counsel in the presence of counsel, and that any confession or
admission obtained in violation of his rights shall be inadmissible in evidence
against him. As held in People vs. Gamboa,[17] this constitutional right applies
only against testimonial compulsion and not when the body of the accused is
proposed to be examined. In fact, an accused may validly be compelled to be
photographed or measured, or his garments or shoes removed or replaced, or to move
his body to enable the foregoing things to be done, without running afoul of the
proscription against testimonial compulsion

WHEN DOES IT BEGIN?

QUESTIONING INITIATED AFTER PERSON IS TAKEN INTO CUSTODY OR OTHERWISE DEPRIVED OF
FREEDOM OF ACTION IN A SIGNIFICANT MANNER
INVESTIGATION CEASES TO BE A GENERL INQUIRY
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 then 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.

ALSO when a person is taken into custody and is singled out as a suspect in the
commission of a crime under investigation and the police officers begin to ask
questions on the suspect's participation therein and which tend to elicit an
admission.

PP vs DE LA CRUZ:
An accused person must be informed of the rights set out in said paragraph of
Section 12 upon being held as a suspect and made to undergo custodial investigation
by the police authorities.[9] As explained by this Court in People vs. Marra,[10]
custodial investigation involves any questioning initiated by law enforcement
authorities after a person is taken into custody or otherwise deprived of his
freedom of action in any significant manner. And, 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 then aimed upon a particular suspect who has been taken into
custody and to whom the police would then direct interrogatory question which tend
to elicit incriminating statements.

Furthermore, not only does the fundamental law impose, as a requisite function of
the investigating officer, the duty to explain those rights to the accused but also
that there must correspondingly be a meaningful communication to and understanding
thereof by the accused. A mere perfunctory reading by the constable of such rights
to the accused would thus not suffice.

The defendant in the dock must be made to understand comprehensively, in the

language or dialect that he knows, the full extent of the same. A confession made
in an atmosphere characterized by deficiencies in informing the accused of all the
rights to which he is entitled would be rendered valueless and inadmissible,
perforated, as it is by non-compliance with the procedural and substantive
safeguards to which an accused is entitled under the Bill of Rights and as now
further implemented and ramified by statutory law.
In the present case, SPO1 Atanacio, Jr., admitted in his testimony before the lower
court that the investigation of appellant in connection with the murders actually
commenced at around 9:00 A.M. on June 27, 1992 at the police headquarters in
Cainta, Rizal, at the time when appellant was still without counsel.[12] The sworn
statement containing appellant’s extrajudicial confession itself shows that it was
taken at around 11:00 A.M.[13] Further, while SPO1 Atanacio, Jr. informed appellant
in Tagalog of his right to remain silent, that any statement he made could be used
for or against him in any court, and that he could have counsel preferably of his
own choice, he nonetheless failed to tell appellant that if the latter could not
afford the services of counsel, he could be provided with one.[14]

The foregoing lapses on the part of the police authorities are all fatal to the
admissibility of the extrajudicial confession supposedly executed by appellant
before SPO1 Atanacio, Jr. Jurisprudence along these lines have all been too
consistent - an accused under custodial interrogation must continuously have a
counsel assisting him from the very start thereof. Indeed, Section 12, Article III
of the Constitution, could not be any clearer.

To reiterate, prior to the commencement of the investigation, the accused must

perforce be informed, on top of all his other rights enumerated therein, that where
he lacks a counsel of his choice because of indigence or other incapacitating
cause, he shall be provided with one. Without this further safeguard, the
cautionary right to counsel would merely impress upon the accused, more so upon an
impecunious person like appellant who is hardly educated, that his right thereto
would mean simply that he can consult a lawyer if he has one or has the financial
capacity to obtain legal services, and nothing more.

Moreover, had she been (The lawyer) equal to her responsibility in the face of such
serious charge involved in the cases, the failure of SPO1 Atanacio, Jr. to fully
apprise appellant of all his rights, particularly the requirement that if he could
not afford the services of a lawyer he shall be provided with one would have been
rectified by said counsel at that very stage of the investigation. Indeed, from our
earliest jurisprudence, the law vouchsafes to the accused the right to an effective
counsel, one who can be made to act in protection of his rights,[16] and not by
merely going through the motions of providing him with anyone who possesses a law
degree.

In People vs. Ayson, etc., et al.,[17] this Court aptly emphasized these
constitutional safeguards in this wise:
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for
a person in police custody, “in-custody interrogation” being regarded as the
commencement of an adversary proceeding against the suspect.
He must be warned prior to any questioning that he has the right to remain silent,
that anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he so desires. Opportunity to
exercise those rights must be afforded to him throughout the interrogation. After
such warnings have been given, such opportunity afforded him, the individual may
knowingly and intelligently waive these rights and agree to answer or make a
statement. But unless and until such warnings and waivers are demonstrated by the
prosecution at the trial, no evidence obtained as a result of interrogation can be
used against him.

x x x After a person is arrested and his custodial investigation begins, a

confrontation arises which at best may be termed unequal. The detainee is brought
to an army camp or police headquarters and there questioned and “cross-examined”
not only by one but as many investigators as may be necessary to break down his
morale. He finds himself in strange and unfamiliar surroundings, and every person
he meets, he considers hostile to him. The investigators are well-trained and
seasoned in their work. They employ all the methods and means that experience and
study have taught them to extract the truth, or what may pass for it, out of the
detainee. Most detainees are unlettered and are not aware of their constitutional
rights. And even if they were, the intimidating and coercive presence of the
officers of the law in such an atmosphere overwhelms them into silence. Section 20
of the Bill of Rights (OLD CONSTI) seeks to remedy this imbalance.

Necessarily, even while there is evidence of the corpus delicti in this case,
appellant’s conviction must be set aside for his extrajudicial confession is
obviously inadmissible in evidence against him. The rule is that an extrajudicial
confession, where admissible, must be corroborated by evidence of the corpus
delicti in order to sustain a finding of guilt.[18] Both must co-exist. The
insistence of the Office of the Solicitor General that appellant’s confession could
nonetheless be treated as an “admission” which could therefore be admitted in
evidence is misplaced, for the Bill of Rights treats of both “confessions” and
“admissions” in the same light.[19] In addition, it should be stressed that in
appellant’s case, no eyewitnesses to the actual killings were ever presented to
testify in court, and the prosecution relied primarily on circumstantial evidence
to inculpate appellant in crimes wherein he was meted three penalties of reclusion
perpetua.

PP vs BALOLOY: MIRANDA RIGHTS NEED NOT BE INFORMED IF THERE IS NO CUSTODIAL

INVESTIGATION AND IF MERELY SPONTNEOUS ANSWER FREELY AND VOLUNTARILY GIVEN IN AN
ORDINARY MANNER. SO SUCH STATEMENTS ARE ADMISSIBLE

It has been held that the constitutional provision on custodial investigation does
not apply to a spontaneous statement, not elicited through questioning by the
authorities but given in an ordinary manner whereby the suspect orally admits
having committed the crime. Neither can it apply to admissions or confessions made
by a suspect in the commission of a crime before he is placed under investigation.
What the Constitution bars is the compulsory disclosure of incriminating facts or
confessions. The rights under Section 12 of the Constitution are guaranteed to
preclude the slightest use of coercion by the state as would lead the accused to
admit something false, not to prevent him from freely and voluntarily telling the
truth.[26]

In the instant case, after he admitted ownership of the black rope and was asked by
Ceniza to tell her everything, JUANITO voluntarily narrated to Ceniza that he raped
GENELYN and thereafter threw her body into the ravine. This narration was a
spontaneous answer, freely and voluntarily given in an ordinary manner. It was
given before he was arrested or placed under custody for investigation in
connection with the commission of the offense.

Moreover, JUANITO did not offer any evidence of improper or ulterior motive on the
part of Ceniza, which could have compelled her to testify falsely against him.
Where there is no evidence to show a doubtful reason or improper motive why a
prosecution witness should testify against the accused or falsely implicate him in
a crime, the said testimony is trustworthy.[27]

However, there is merit in JUANITO’s claim that his constitutional rights during
custodial investigation were violated by Judge Dicon when the latter propounded to
him incriminating questions without informing him of his constitutional rights. It
is settled that at the moment the accused voluntarily surrenders to, or is arrested
by, the police officers, the custodial investigation is deemed to have started.
So, he could not henceforth be asked about his complicity in the offense without
the assistance of counsel.[28] Judge Dicon’s claim that no complaint has yet been
filed and that neither was he conducting a preliminary investigation deserves scant
consideration. The fact remains that at that time JUANITO was already under the
custody of the police authorities, who had already taken the statement of the
witnesses who were then before Judge Dicon for the administration of their oaths on
their statements.

At any rate, while it is true that JUANITO’s extrajudicial confession before Judge
Dicon was made without the advice and assistance of counsel and hence inadmissible
in evidence, it could however be treated as a verbal admission of the accused,
which could be established through the testimonies of the persons who heard it or
who conducted the investigation of the accused.

RA 7438:
Under R.A. 7438, “custodial investigation” shall include the
practice of issuing an “invitation” to a person who is investigated in connection
with
an offense he is suspected to have committed, without prejudice to the liability of
the “inviting” officer for any violation of law.

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation;

Duties of Public Officers. –

(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 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
rights 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.lawphi1Ÿ

(c) The custodial investigation report shall be reduced to writing by the

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 latter's 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; otherwise, such extrajudicial confession
shall be inadmissible as evidence in any proceeding.

(e) Any waiver by a person arrested or 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.

Sec. 3
...x...XX
In the absence of any lawyer, no custodial investigation shall be conducted and the
suspected person can only be detained by the investigating officer in accordance
with the provisions of Article 125 of the Revised Penal Code.

Note: Officers may be punished if they don't follow the above duties.

PP vs DEL ROSARIO:
From the foregoing, it is clear that del Rosario was deprived of his rights during
custodial investigation. From the time he was "invited" for questioning at the
house of the barangay captain, he was already under effective custodial
investigation, but he was not apprised nor made aware thereof by the investigating
officers. The police already knew the name of the tricycle driver and the latter
was already a suspect in the robbing and senseless slaying of Virginia Bernas.
Since the prosecution failed to establish that del Rosario had waived his right to
remain silent, his verbal admissions on his participation in the crime even before
his actual arrest were inadmissible against him, as the same transgressed the
safeguards provided by law and the Bill of Rights.

PP vs LUGOD:
Records reveal that Lugod was not informed of his right to remain silent and to
counsel, and that if he cannot afford to have counsel of his choice, he would be
provided with one. Moreover, there is no evidence to indicate that he intended to
waive these rights. Besides, even if he did waive these rights, in order to be
valid, the waiver must be made in writing and with the assistance of counsel.
Consequently, Lugod's act of confessing to SPO2 Gallardo that he raped and killed
Nairube without the assistance of counsel cannot be used against him for having
transgressed Lugod's rights under the Bill of Rights. This is a basic tenet of our
Constitution which cannot be disregarded or ignored no matter how brutal the crime
committed may be. In the same vein, Lugod's act in pointing out the location of the
body of Nairube was also elicited in violation of the Lugod's right to remain
silent. The same was an integral part of the- uncounselled confession and is
considered a fruit of the poisonous tree.
Even if we were to assume that Lugod was not yet under interrogation and thus not
entitled to his constitutional rights at the time he was brought to the police
station, Lugod's acts subsequent to his apprehension cannot be characterized as
having been voluntarily made considering the peculiar circumstances surrounding his
detention. His confession was elicited by SPO2
Gallardo who promised him that he would help him if he told the truth. Furthermore,
when ugod allegedly pointed out the body of the victim, SPO2 Gallardo, the whole
police force as well as nearly 100 of the townspeople of Cavinti escorted him
there. Ricardo Vida stated that the townspeople were antagonistic towards Lugod and
wanted to hurt him. The atmosphere from the time Lugod was apprehended and taken to
the police station up until the time he was alleged to have pointed out the
location of the body of the victim was highly intimidating and was not conducive to
a spontaneous response. Amidst such a highly coercive atmosphere, Lugod's claim
that he was beaten up and maltreated by the police officers raises a very serious
doubt as to the voluntariness of his alleged confession.

VALID EXTRAJUDICIAL CONFESSION:

To be acceptable, extrajudicial confessions must conform to constitutional

requirements. A confession is not valid and not admissible in evidence when it is
obtained in violation of any of the following rights of persons under custodial
investigation: to remain silent, to have independent and competent counsel
preferably of their own choice, to be provided with counsel if they are unable to
secure one, to be assisted by such counsel during the investigation, to have such
counsel present when they decide to waive these rights, and to be informed of all
these rights and of the fact that anything they say can and will be used against
them in court.

If the extrajudicial confession satisfies these constitutional standards, it is

subsequently tested for voluntariness, i.e., if it was given freely — without
coercion, intimidation, inducement, or false promises; and credibility, i.e., if it
was consistent with the normal experience of mankind.

A confession that meets all the foregoing requisites constitutes evidence of a high
order because no person of normal mind will knowingly and deliberately confess to
be the perpetrator of a crime unless prompted by truth and conscience. Otherwise,
it is disregarded in accordance with the cold objectivity of the exclusionary rule.

There are two kinds of involuntary or coerced confessions

namely
(1) coerced confessions, the product of third degree
methods, such as torture, force, violence, threat and intimidation, which are dealt
with in paragraph 2; and (2) uncounselled statements given without the benefit of
the Miranda warning, which are the subject of paragraph 1 [People v. Vallejo, G.R.
No. 144656, May 02, 2002].

Extra: Moreover, the lawyer should ascertain that the confession is made
voluntarily and that the person under investigation fully understands the nature
and the consequence of his extrajudicial confession in relation to his
constitutional rights. A contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to be presumed innocent.

For conviction to set in, the extrajudicial confession must be coupled with the
corpus delicti.

RA 7438:
(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 latter's 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; otherwise, such extrajudicial confession
shall be inadmissible as evidence in any proceeding.

IF MORE THAN 1 ACCUSED and THT ACCUSED CONFESSED AND THE CONFESSION DID NOT ABIDE
WITH THE CONSTITUTION,
GENERAL RULE: INADMISSIBLE AGAINST ALL ACCUSED
People vs Jara
The strongest evidence against Felicisimo Jara are the extra-judicial confessions
of his two co-accused. Bernadas and Vergara point to Jara as the one who bludgeoned
the two victims with a hammer and then used a pair of scissors in inflicting the
stab wounds. He was also alleged to have offered them P1,000.00 each if they would
help him in the killing of his wife.

However, since the confessions of Bernadas and Vergara are inadmissible against
them, with more reason can they not be used against Jara.

EXCEPTION: ADMISSIBLE AGAINST OTHER ACCUSED WHO ARE CO-CONSPIRATORS SINCE IT IS

ONLY USED AS CORROBORATING EVIDENCE
People vs Balisteros
Appellants cannot seek solace in the provision they have invoked. What is provided
by the modified formulation in the 1987 Constitution is that a confession taken in
violation of said Section 12 and Section 17 of the same Article "shall be
inadmissible in evidence against him," meaning the confessant. This objection can
be raised only by the confessant whose rights have been violated as such right is
personal in nature
Furthermore, even in extrajudicial confessions which under jurisprudential
doctrines have been held to be generally binding upon the confessant and not
against his co-accused, Galvante's confession would readily fall into the
exceptions to that rule since appellants are charged as co-conspirators and said
confession is used only as a corroborating evidence, or as circumstantial evidence
to show the probability of participation by the co-conspirator, or is corroborated
by other evidence of record

PP vs PASUDAG: SIGNING OF CONFISCATION REPORTS OR RECEIPT OF SEIZED PROPERTY

INADMISSIBLE
On September 26, 1995, at around 1:30 in the afternoon, SPO2 Pepito Calip of the
PNP Sison, Pangasinan, went to Brgy. Artacho to conduct anti-jueteng operations.
He urinated at a bushy bamboo fence behind the public school. About five (5)
meters away, he saw a garden of about 70 square meters. There were marijuana
plants in between corn plants and camote tops. He inquired from a storekeeper
nearby as to who owned the house with the garden. The storeowner told him that
Alberto Pasudag owned it.[5]

SPO2 Calip went to the Police Station and reported to Chief of Police Romeo C.
Astrero. The latter dispatched a team (composed of SPO2 Calip, SPO3 Fajarito, SPO3
Alcantara and PO3 Rasca) to conduct an investigation. At around 2:30 in that same
afternoon, the team arrived at Brgy. Artacho and went straight to the house of
accused Pasudag. SPO3 Fajarito looked for accused Pasudag and asked him to bring
the team to his backyard garden which was about five (5) meters away.[6]

Upon seeing the marijuana plants, the policemen called for a photographer, who took
pictures of accused Pasudag standing beside one of the marijuana plants.[7] They
uprooted seven (7) marijuana plants. The team brought accused Pasudag and the
marijuana plants to the police station
It has been held repeatedly that custodial investigation commences when a person is
taken into custody and is singled out as a suspect in the commission of a crime
under investigation and the police officers begin to ask questions on the suspect's
participation therein and which tend to elicit an admission.
Obviously, accused-appellant was a suspect from the moment the police team went to
his house and ordered the uprooting of the marijuana plants in his backyard garden

When the accused was brought to the station and made to sign the confiscation (of
the marijuana) report, he was already under custodial investigation.

SAME IN PP vs DE LARA
despite the valid warrantless arrest and search, as a result of a buy-bust
operation, nonetheless, where the accused, insisting that he would like to wait for
counsel, was made to sign the photocopy of the marked P20-bill, Receipt of
Property Seized, and the Booking and Information Sheet, without assistance of
counsel, there was clearly a violation of Sec. 12, Art. Ill, of the Constitution.

POLICE LINE_UP NOT CUSTODIAL INVESTIGATION

A police line-up is not considered a part of any custodial inquest, because it is
conducted before that stage of investigation is reached
[People v. Bravo, G.R. No. 135562, November 22, 1999],
People v. Amestuzo, G.R. No. 104383, July 12, 2001, reiterates this rule, because
in a police line-up, the process has not yet shifted from the investigatory to the
accusatory stage, and
it is usually the witness or the complainant who is interrogated and who gives a
statement in the course of the line-up.
PP vs. AMESTUZO
The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III of the
1987 Constitution, or the so-called Miranda rights, may be invoked only by a person
while he is under custodial investigation.[6] Custodial investigation starts when
the police investigation is no longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect taken into custody by the police who
starts the interrogation and propounds questions to the person to elicit
incriminating statements.[7] Police line-up is not part of the custodial
investigation; hence, the right to counsel guaranteed by the Constitution cannot
yet be invoked at this stage.[8] This was settled in the case of People vs.
Lamsing[9] and in the more recent case of People vs. Salvatierra.[10] The right to
be assisted by counsel attaches only during custodial investigation and cannot be
claimed by the accused during identification in a police line-up because it is not
part of the custodial investigation process. This is because during a police line-
up, the process has not yet shifted from the investigatory to the accusatory[11]
and it is usually the witness or the complainant who is interrogated and who gives
a statement in the course of the line-up.[12]

Hence, herein accused-appellant could not yet invoke his right to counsel when he
was presented for identification by the complainants because the same was not yet
part of the investigation process. Moreover, there was no showing that during his
identification by the complainants, the police investigators sought to elicit any
admission or confession from accused-appellant. In fact, records show that the
police did not at all talk to accused-appellant when he was presented before the
complainants. The alleged infringement of the constitutional rights of the accused
while under custodial investigation is relevant and material only to cases in which
an extra-judicial admission or confession extracted from the accused becomes the
basis of his conviction.[13] In the present case, there is no such confession or
extra-judicial admission.

{{{{{
SEGUE: IDENTIFICATION
When the accused is brought to the police station only to be
identified by a witness, technically, he is not yet under custodial investigation
[People v. Hatton, 210 SCRA 1],

Accused-appellant also makes much ado about the manner in which he was presented to
the complainants for identification. It is alleged that the identification was
irregular as he was not placed in a police line-up and instead, made to stand
before the complainants alone.

Again, the contention has no merit. As aptly pointed out by the Solicitor General,
there is no law requiring a police line-up as essential to a proper identification.
[14] The fact that he was brought out of the detention cell alone and was made to
stand before the accused by himself and unaccompanied by any other suspects or
persons does not detract from the validity of the identification process.

However, we agree that complainants' out-of-court identification of accused-

appellant was seriously flawed as to preclude its admissibility. In resolving the
admissibility and reliability of out-of-court identifications, we have applied the
totality of circumstances test enunciated in the case of People vs. Teehankee[15]
which lists the following factors:
xxx (1) the witness' opportunity to view the criminal at the time of the crime; (2)
the witness' degree of attention at that time; (3) the accuracy of any prior
description given by the witness; (4) the level of certainty demonstrated by the
witness at the identification; (5) the length of time between the crime and the
identification; and (6) the suggestiveness of the identification process.
}}}}}}}}}
CONTRAST: PP vs ESCORDIAL
POLICE LINE-UP and SHOW-UP require presence of counsel if done AFTER THE START OF
CUSTODIAL INVESTIGATION
As a rule, an accused is not entitled to the assistance of counsel in a police
line-up considering that such is usually not a part of the custodial inquest.[42]
However, the cases at bar are different inasmuch as accused-appellant, having been
the focus of attention by the police after he had been pointed to by a certain
Ramie as the possible perpetrator of the crime, was already under custodial
investigation when these out-of-court identifications were conducted by the police.

An out-of-court identification of an accused can be made in various ways. In a

show-up, the accused alone is brought face to face with the witness for
identification, while in a police line-up, the suspect is identified by a witness
from a group of persons gathered for that purpose. During custodial investigation,
these types of identification have been recognized as “critical confrontations of
the accused by the prosecution” which necessitate the presence of counsel for the
accused. This is because the results of these pre-trial proceedings “might well
settle the accused’s fate and reduce the trial itself to a mere formality.”[44] We
have thus ruled that any identification of an uncounseled accused made in a police
line-up, or in a show-up for that matter, after the start of the custodial
investigation is inadmissible as evidence against him.[45]

Here, accused-appellant was identified by Michelle Darunda in a show-up on January

3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda
in a police line-up on various dates AFTER HIS ARREST. Having been made when
accused-appellant did not have the assistance of counsel, these out-of-court
identifications are inadmissible in evidence against him. Consequently, the
testimonies of these witnesses regarding these identifications should have been
held inadmissible for being “the direct result of the illegal lineup ‘come at by
exploitation of [the primary] illegality.

Be that as it may, as the defense failed to object immediately when these witnesses
were presented by the prosecution or when specific questions regarding this matter
were asked of them, as required by Rule 132, §36 of the Rules on Evidence, accused-
appellant must be deemed to have waived his right to object to the admissibility of
these testimonies.[47]

Furthermore, the inadmissibility of these out-of-court identifications does not

render the in-court identification of accused-appellant inadmissible for being the
“fruits of the poisonous tree.”[48] This in-court identification was what formed
the basis of the trial court’s conviction of accused-appellant.

BEING IN THE PATROL JEEP ON THE WAY TO THE POLICE STATION- PURPOSE IS NOT
IDENTIFICATION BUT HE WAS ALREADY A SUSPECT
in People v. Bolanos, 211 SCRA 262, where, while being conducted to
the police station on board the police jeep, the accused made an extrajudicial
confession that he had killed the victim. Inasmuch as the uncounselled confession
was the sole basis of the judgment of conviction, it was held that the trial court
committed a reversible error. While on board the police jeep, the accused was
deemed to have been already under custodial investigation, and should have been
informed of his rights.

NOT CUSTODIAL INTERROGATION:

AUDIT EXAMINATION
In NAVALLO, the Supreme Court said very clearly that the rights are invocable only
when the accused is under custodial investigation. A person undergoing a normal
audit examination is not under custodial investigation and, hence, the audit
examiner may not be considered the law enforcement officer contemplated by the
rule.

COURT ADMINISTRATOR'S INVESTIGATION

Because the Court
Administrator is not a law enforcement officer, an investigation conducted by him
does not constitute custodial investigation within the contemplation of the
constitutional guarantee

PRELIMINARY INVESTIGATION

The import of the distinction between custodial interrogation and preliminary

investigation relates to the inherently coercive nature of a custodial
interrogation which is conducted by the police authorities.[29] Due to the
interrogatory procedures employed by police authorities, which are conducive to
physical and psychological coercion, the law affords arrested persons
constitutional rights to guarantee the voluntariness of their confessions and
admissions, and to act as deterrent from coercion by police authorities.[30] These
safeguards are found in Article III, Section 12(1) of the Constitution and Section
2 of R.A. No. 7438. Sans proper safeguards, custodial investigation is a fertile
means to obtain confessions and admissions in duress.

Resultingly, as pronounced in Ladiana, the claim by the accused of inadmissibility

of his extrajudicial confession is unavailing because his confessions were obtained
during a preliminary investigation.

And even if accused-appellant Peñaflor’s extrajudicial confessions were obtained

under custodial investigation, these are admissible. To be admissible, a confession
must comply with the following requirements: it “must be (a) voluntary; b) made
with the assistance of a competent and independent counsel; c) express; and d) in
writing.”[31] In the case at bar, the prosecution did not present proof of the
absence of any of these requirements.

EMPLOYER'S INVESTIGATION
Neither is the investigation conducted by an employer deemed custodial
inquest which will entitle the employee to the Miranda rights.

CSC INVESTIGATION
An investigation conducted by the Civil Service Commission involving fake
eligibility is not custodial
investigation

SIGNING OF A BOOKING SHEET

It was held that when an arrested person signs a
booking sheet and an arrest report at the police station, he does not admit the
commission of an offense nor confess to any incriminating circumstance. The
booking sheet is no more than a record of arrest and a statement on how the arrest
was made. It is simply a police report, and it has no probative value as an
extrajudicial statement of the person being detained. The signing by the accused of
the booking sheet and the arrest report is not a part of custodial investigation.

SIGNING OF RECEIPT OF POSSESSION OF ILLEGAL THINGS IS AN EXTRAJUDICIAL CONFESSION

or pwede man ADMISSION
It requires the assistance of counsel

MEDIA CONFESSION
In People v. Endino, G.R. No. 133026, February 20, 2001, the
Supreme Court ruled that the admission of the videotaped confession is proper. The
interview was recorded on video and it showed accused unburdening his guilt
willingly, openly and publicly in the presence of newsmen. Such confession does
not form part of custodial investigation as it was not given to police officers but
to
media men in an attempt to solicit sympathy and forgiveness from the public. There
was no showing that the interview was coerced or against his will. However,
because of the inherent danger in the use of television as a medium for admitting
one’s guilt, courts are reminded that extreme caution must be taken in further
admitting similar confessions.

CONSTITUTIONAL PROCEDURES ON CUSTODIAL INVESTIGATION DOES NOT COVER RELATIONSHIP

BETWEEN PRIVATE INDIVIDUALS. IT GOVERNS INDIVIDUAL-STATE RELATIONSHIP
In People v. Andan, G.R. No. 116437, March 3, 1997, the
Supreme Court held that the voluntary but uncounselled confession of the accused
to the Mayor and to the media was admissible in evidence. In this case, it was
noted that it was the accused who freely, spontaneously and voluntarily sought the
Mayor for a private meeting, and the Mayor did not know that the accused was
going to confess his guilt. Accused talked with the Mayor as a confidant, not as a
law enforcement officer. The confession made by the accused to the news
reporters was likewise free of undue influence from the police authorities. The
news reporters acted as news reporters when they interviewed the accused; they
were not acting under the direction and control of the police.

Constitutional procedures on custodial investigation do not apply to the

spontaneous statements
not elicited through questioning by the authorities, but given in an ordinary
manner
whereby the accused orally admitted having committed the crime. This is
reiterated in People v. Domantay, G.R. No. 130612, May 11, 1999, where the
Supreme Court said that the oral confessions made to newsmen are not covered
by Sec. 12, Art. III. The Bill of Rights does not concern itself with the
relationship
between a private individual and another individual. Rather, it governs the
relationship between the individual and the State. The prohibitions therein are
addressed primarily to the State and its agents. As to the requirement that the
extrajudicial confession must be corroborated by other evidence, the Court said
that there was the corpus delicti which corroborated the extrajudicial confession.

Similarly, in People v. Maingan, G.R. No. 170470, September

26, 2008, the Court held that when the accused-appellant was brought to the
barangay hall in the morning of January 2, 2001, he was already a suspect in the
fire that destroyed several houses and killed the whole family of Roberto Separa,
Sr., and thus, the confession of appellant given to the Barangay Chairman, as well
as the lighter found by the latter in her bag, is inadmissible in evidence. But the
testimony of Mercedita Mendoza, a neighbour of Roberto Separa, Sr., on the same
confession, is admissible in evidence and is not covered by the exclusionary rule.

POLICE HAD NOT STARTED QUESTIONING

Thus, in People v. Buntan, 221 SCRA 421,
inasmuch as all that the police investigator did was to show the suspect the
victim’s
sister and the latter’s sworn statement identifying him as one of the two suspects
in the killing, and the police had not started questioning, interrogating or
exacting
a confession from the suspect, the right to counsel may not yet be validly invoked.
RIGHT TO COUNSEL SPECIFICS:

ONLY AVAILABLE AT START OF CUSTODIAL INVESTIGATION- DUH

Thus, in People v. Buntan, 221 SCRA 421,
inasmuch as all that the police investigator did was to show the suspect the
victim’s
sister and the latter’s sworn statement identifying him as one of the two suspects
in the killing, and the police had not started questioning, interrogating or
exacting
a confession from the suspect, the right to counsel may not yet be validly invoked.

NOT REQUIRED IN POLICE LINE-UP or PHOTOGRAPH or PARAFFIN TEST

The right to counsel is not required in a police line-up,
inasmuch as police line-up is not part of the custodial inquest. Neither may this
right be invoked when the suspect is given a paraffin test, as he is not yet under
custodial investigation [People v. de Guzman, 224 SCRA 93; People v. Lamsing,
248 SCRA 471], The suspect is likewise not entitled to the Miranda rights when he
is merely photographed or paraffin-tested

IF THERE IS NO LAWYER AVAILABLE IN THE TOWN- WAIT!

In People v. Ordono; G.R. No. 132154, June 29, 2000
it was held that custodial investigation commenced when the accused
Ordono and Medina voluntarily went to the Santol Police Station to confess, and
the investigating officer started asking questions to elicit information from them.
At
that point, the right of the accused to counsel automatically attached to them.
When, because of the non-availability of practising lawyers in that remote town, no
counsel could be provided, the police should have already desisted from
continuing with the interrogation, even if the accused gave consent to the
investigation. The presence of the parish priest and the Municipal Mayor of Santol,
as well as the relatives of the accused, did not cure in any way the absence of a
lawyer during the investigation. In providing that during the taking of an
extrajudicial confession the accused’s parents, older brothers or sisters, spouse,
the Mayor, Municipal Judge, district school supervisor, or priest or minister of
the
gospel as chosen by the accused may be present, R.A. 7438 does not propose
that they appear in the alternative or as a substitute of counsel without any
condition. It is explicitly provided that before the above-mentioned persons can
appear, two conditions must be met, namely: [a] counsel of the accused is absent;
and [b] a valid waiver had been executed. In the absence of a valid waiver, none
of the above-named persons can stand in lieu of counsel.

COMPETENT AND INDEPENDENT IS VERY IMPORTANT!

The modifier “competent and independent” in the 1987
Constitution is not an empty rhetoric. It stresses the need to assure the accused,
under the uniquely stressful conditions of custodial investigation, an informed
judgment on the choices explained to him by a diligent and capable lawyer. The
desired role of lawyer in the process of custodial investigation is rendered
meaningless if the lawyer merely gives perfunctory advice as opposed to
meaningful advocacy of the rights of the person undergoing questioning. If the
advice given is so cursory as to be useless, voluntariness is impaired [People v.
Suela, G.R. Nos. 133570-71, January 15, 2002]

COMPETENT: WILLING TO SAFEGUARD THE CONSTITUTIONAL RIGHTS OF THE ACCUSED

To be competent and
independent, it is only required for the lawyer to be “willing to safeguard the
constitutional rights of the accused, as distinguished from one who would merely
be giving a routine, peremptory and meaningless recital of the individual’s
constitutional rights” [People v. Bagnate, G.R. Nos. 133685-86, May 20, 2004,
citing People v. Porio, G.R. No. 117202, February 13, 2002], ’

INDEPENDENT: NOT CITY LEGAL OFFICER BECAUSE JOB AKIN TO THAT OF A PROSECUTOR
NOT ONE APPLYING FOR NBI, NOT MAYOR
Thus, in People v. Lucero, 244 SCRA 425, the Court held that
the petititioner was denied the right to counsel where the lawyer, not counsel of
choice, arrived at the CIS headquarters around 9pm, the second night of
appellant’s detention, talked to the appellant about his rights, left the appellant
in
the custody of CIS agents during the actual interrogation, and then came back the
next day for examination and signature of the statement of the appellant.

Obviously, he cannot be a special counsel, public or private

prosecutor, counsel of the police, or a municipal attorney, whose interest is
admittedly adverse to the accused. As legal officer of the municipality, it is
seriously doubted whether a municipal attorney can effectively undertake the
defense of the accused without running into conflict of interest.

In People v. Januario, 267 SCRA 608, it was held that there was a violation of
this provision
where the counsel who assisted the accused in the custodial investigation
conducted by the NBI was an applicant for employment with the NBI, as he, in fact,
joined the NBI a few months later. In People v. Espanola, infra., the Supreme Court
declared that the City Legal Officer was not an independent counsel within the
purview of the constitutional provision. See also People v. Labtan, G.R. No.
127497, December 8, 1999. Neither can the Mayor be considered an independent
counsel, because as Mayor his duties were inconsistent with his responsibilities to
the suspect [People v. Velarde, G.R. No. 139933.

PREFERABLY OF HIS OWN CHOICE NOT LITERAL, OTHERWISE, THE SUSPECT CAN SIMPLY CHOOSE
AN UNAVAILABLE COUNSEL TO DELAY THE PROCEEDINGS
Thus, in People v. Espiritu, G.R. No. 128287, February 2, 1999, it was held that
the right to
counsel does not mean that the accused must personally hire his own counsel.
The constitutional requirement is satisfied when a counsel is engaged by anyone
acting on behalf of the person under investigation, or appointed by the court upon
petition by said person or by someone on his behalf.

SUSPECT HAS TO OBJECT TO THE COUNSEL PROVIDED FOR HIM IF HE DOES NOT WANT HIM.
OTHERWISE, PRESUMED ENGAGEMENT.
While the choice of a lawyer in cases where the person
under custodial interrogation cannot afford the services of counsel — or where the
preferred lawyer is not available — is naturally lodged in the police
investigators,
the suspect has the final choice as he may reject the counsel chosen for him and
ask for another one. A lawyer provided by the investigators is deemed engaged by
the accused when he does not raise any objection against the counsel’s
appointment during the course of the investigation, and the accused thereafter
subscribes to the veracity of the statement before the swearing officer [People v.
Jerez, G.R. No. 114385, January 19, 1998

SUSPECT MUST BE INFORMED THAT HE CAN CHOOSE HIS COUNSEL

where the accused was not asked whether he wishes or can afford to retain
his own lawyer, but was merely told that Atty. Cimafranca was a lawyer and asked
if he needed his services, it was clear that he was not made aware that he could
choose his own lawyer other than the one assigned by the police..
WHEN DOES CUSTODIAL INVESTIGATION END?

Custodial investigation does not include quasi-judicial or judicial investigations

conducted by the fiscal or the judge.
Thus, in People v. Ayson (G.R. No. 85215), Justice Andres Narvasa discussed that
the rights of a person under custodial interrogation do not apply or extend to
persons under preliminary investigation, or those already charged in court for a
crime.

TAKE NOTE OF CRITICAL PRE-TRIAL STAGES: CONFESSION OBTAINED AFTER CHARGES HAVE BEEN
FILED STILL REQUIRES THE RIGHT TO COUNSEL
Confession obtained after charges had already been filed. In
People v. Espanola, G.R. No. 119308, April 18, 1997, the policemen brought
accused Paquingan to the Prosecutor’s Office as the accused manifested his
desire to confess. But when the notes were transcribed, accused refused to sign,
and only the lawyers who assisted him signed the confession. It appeared,
however, that when the Prosecutor took the confession, an information for rape
with homicide had already been filed against Paquingan and his co-accused.
Although Paquingan was no longer under custodial investigation when he gave his
confession because charges had already been filed against him, nonetheless, the
Supreme Court said that the right to counsel still applies in certain pre-trial
proceedings that are considered “critical stages” in the criminal process.
Custodial
interrogation before or after charges have been filed, and non-custodial
interrogation after the accused has been formally charged, are considered “critical
pre-trial stages” in the criminal process.

WHAT MAY BE WAIVED?

The right to remain silent and the right to
counsel, but not the right to be informed of these rights

Waiver of the exclusionary rule. For failure of the accused to object to

the offer in evidence, the uncounselled confession was admitted in evidence
[People v. Samus, G.R. Nos.. 135957-58,

WARNING! RES GESTAE

Res gestae. The declaration of the accused acknowledging guilt
made to the police desk officer after the crime was committed may be given in
evidence against him by the police officer to whom the admission was made, as
part of the res gestae [People v. Dy, 158 SCRA 111].

REGARDING REENACTMENTS:
PP vs JARA
As to the re-enactment, the extra-judicial-confessions served as a script for what
was to follow. Pictures re-enacting a crime which are based on an inadmissible
confession are themselves inadmissible.

SILENCE DOES NOT EQUAL ADMISSION. BUT COUPLED WITH NON-PRODUCTION OF EVIDENCE, IT
MAY BE INFERRED THAT HE IS GUILTY
But in the later case of People v. Solis?4 it declared: "While
accused have a right to be silent, they run the risk of an
inference from the non-production ofevidence." Failure or
refusal ofthe accused to testify may prejudice him if the
prosecution has already established a prima facie case
against him, according toPeople v. Resano.