ARREST
court acquires jurisdiction over his person, is
DEFINITION:
 Arrest is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense.
HOW EFFECTED:
 an arrest is effected by an actual restraint of the
person to be arrested or by his voluntary
submission to the custody of the person making
the arrest.
Application of actual force, manual touching of the
body, physical restraint or a formal declaration of arrest
is not, required. It is enough that there be an intent on the
part of one of the parties to arrest the other and an intent
on the part of the other to submit, under the belief and
impression that submission is necessary.
WARRANTLESS ARREST
 Sec. 5. Arrest without warrant; when lawful. —
A peace officer or a private person may, without
a warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed and he has personal knowledge of
facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner
who has escapes from a penal establishment or
place where he is serving final judgment or
temporarily confined while his case is pending,
or has escaped while being transferred from one
confinement to another.
JURISDICTION OVER THE PERSON
 It has been held that where after the filing of the
complaint or information a warrant for the arrest
of the accused is issued by the trial court and the
accused either voluntarily submitted himself to
the court or was duly arrested, the court thereby
acquires jurisdiction over the person of the
accused.
The voluntary appearance of the accused, whereby the
accomplished either by his pleading to the merits (such
as by filing a motion to quash or other pleadings
requiring the exercise of the court's jurisdiction
thereover, appearing for arraignment, entering trial) or
by filing bail.
On the matter of bail, since the same is intended to
obtain the provisional liberty of the accused, as a rule the
same cannot be posted before custody of the accused has
been acquired by the judicial authorities either by his
arrest or voluntary surrender.
WITH A WARRANT
When warrant of arrest may issue: (a) By the
Regional Trial Court. Within ten (10) days from the
filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and
its supporting evidence. He may immediately dismiss the
case if the evidence on record clearly fails to establish
probable cause.
REQUIREMENTS IN THE ISSUANCE OF A
WARRANT OF ARREST
The JUDGE shall:
(1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of
probable cause.
PROBABLE CAUSE
DEFINITION
 Probable Cause is a reasonable ground of
presumption that a matter is, or may be, well
founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary
caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so.
The term does not mean "actual and positive cause" nor
does it import absolute certainty.
1
It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an
inquiry into whether there is sufficient evidence to
procure a conviction.
It is enough that it is it believed that the act or omission
complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the
prosecution in support of the charge.
Probable cause for the issuance of a warrant of arrest is
the existence of such facts and circumstances that would
lead a reasonably discreet and prudent person to believe
that an offense was committed by the person sought to
be arrested.
This must be distinguished from the prosecutor’s finding
of probable cause which is for the filing of the proper
criminal information.
Probable cause for warrant of arrest is determined to
address the necessity of placing the accused under
custody in order not to frustrate the ends of justice.42
BASIS
The need to find probable cause is dictated by the Bill of
Rights which protects "the right of the people to be
secure in their persons . . . against unreasonable searches
and seizures of whatever nature . . ."20 An arrest without
a probable cause is an unreasonable seizure of a person,
and violates the privacy of persons which ought not to be
intruded by the State.21
Probable cause to warrant arrest is not an opaque
concept in our jurisdiction. Continuing accretions of case
law reiterate that they are facts and circumstances which
would lead a reasonably discreet and prudent man to
believe that an offense has been committed by the person
sought to be arrested.
JUDGE V. PROSECUTOR
DUTY OF JUDGE
Webb v. De Leon, the judge just personally reviews the
initial determination of the investigating prosecutor
finding a probable cause to see if it is supported by
substantial evidence.
• However, in determining the existence or non-
existence of probable cause for the arrest of the accused,
the judge should not rely solely on the said report.[51]
The judge should consider not only the report of the
investigating prosecutor but also the affidavit/affidavits
and the documentary evidence of the parties, the
counter-affidavit of the accused and his witnesses, as
well as the transcript of stenographic notes taken during
the preliminary investigation, if any, submitted to the
court by the investigating prosecutor upon the filing of
the Information.[52]
SOLIVEN VS. MAKASIAR
 The constitutional provision does not
mandatorily require the judge to personally
examine the complainant and her witnesses.
Instead, he may opt to personally evaluate the
report and supporting documents submitted by
the prosecutor or he may disregard the
prosecutors report and require the submission of
supporting affidavits of witnesses.
 The Judge does not have to personally examine
the complainant and his witnesses. The
Prosecutor can perform the same functions as a
commissioner for the taking of the evidence.
However, there should be a report and necessary
documents supporting the Fiscals bare
certification. All of these should be before the
Judge.
 What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence
of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to
personally examine the complainant and his
witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted
by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant
of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscal's
report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.
PEOPLE V. INTING
First, the determination of probable cause is a function
of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor for the Election Supervisor to ascertain.
Only the Judge and the Judge alone makes this
determination.
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Second, the preliminary inquiry made by a Prosecutor
does not bind the Judge. It merely assists him to make
the determination of probable cause.
The Judge does not have to follow what the Prosecutor
presents to him. By itself, the Prosecutors certification of
probable cause is ineffectual. It is the report, the
affidavits the transcripts of stenographic notes (if any),
and all other supporting documents behind the
Prosecutors certification which are material in assisting
the Judge to make his determination.
And third, Judges and Prosecutors alike should
distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest
from the preliminary investigation proper which
ascertains whether the offender should be held for trial
or released. Even if the two inquiries are conducted in
the course of one and the same proceeding, there should
be no confusion about the objectives. The determination
of probable cause for the warrant of arrest is made by the
Judge. The preliminary investigation proper -- whether
or not there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore,
whether or not he should be subjected to the expense,
rigors and embarrassment of trial -- is the function of the
Prosecutor.
HO VS. PEOPLE
First, as held in Inting, the determination of probable
cause by the prosecutor is for a purpose different from
that which is to be made by the judge. Whether there is
reasonable ground to believe that the accused is guilty of
the offense charged and should be held for trial is what
the prosecutor passes upon. The judge, on the other
hand, determines whether a warrant of arrest should be
issued against the accused, i.e. whether there is a
necessity for placing him under immediate custody in
order not to frustrate the ends of justice. Thus, even if
both should base their findings on one and the same
proceeding or evidence, there should be no confusion as
to their distinct objectives.
Second, since their objectives are different, the judge
cannot rely solely on the report of the prosecutor in
finding probable cause to justify the issuance of a
warrant of arrest. Obviously and understandably, the
contents of the prosecutors report will support his own
conclusion that there is reason to charge the accused of
an offense and hold him for trial. However, the judge
must decide independently. Hence, he must have
supporting evidence, other than the prosecutors bare
report, upon which to legally sustain his own findings on
the existence (or nonexistence) of probable cause to
issue an arrest order. This responsibility of determining
personally and independently the existence or
nonexistence of probable cause is lodged in him by no
less than the most basic law of the land. Parenthetically,
the prosecutor could ease the burden of the judge and
speed up the litigation process by forwarding to the latter
not only the information and his bare resolution finding
probable cause, but also so much of the records and the
evidence on hand as to enable His Honor to make his
personal and separate judicial finding on whether to
issue a warrant of arrest.
Lastly, it is not required that the complete or entire
records of the case during the preliminary investigation
be submitted to and examined by the judge.[26] We do
not intend to unduly burden trial courts by obliging them
to examine the complete records of every case all the
time simply for the purpose of ordering the arrest of an
accused. What is required, rather, is that the judge must
have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcripts of stenographic
notes, if any) upon which to make his independent
judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on
the prosecutors recommendation, as Respondent Court
did in this case:
Section 5(a) of Rule 112, grants the trial court three
options upon the filing of the criminal complaint or
information. He may:
a) dismiss the case if the evidence on record clearly
failed to establish probable cause;
b) issue a warrant of arrest if it finds probable cause; or
c) order the prosecutor to present additional evidence
within five days from notice in case of doubt on the
existence of probable cause.
EXECUTIVE AND JUDICIAL DETERMINATION
In a criminal prosecution, probable cause is determined
at two stages.
The first is at the executive level, where determination is
made by the prosecutor during the preliminary
investigation, before the filing of the criminal
information.
3
The second is at the judicial level, undertaken by the
judge before the issuance of a warrant of arrest.
The executive determination of probable cause is one
made during preliminary investigation. It is a function
that properly pertains to the public prosecutor who is
given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to
have committed the crime as defined by law and thus
should be held for trial. Otherwise stated, such official
has the quasi-judicial authority to determine whether or
not a criminal case must be filed in court. Whether or not
that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a
case, is a matter that the trial court itself does not and
may not be compelled to pass upon.
The judicial determination of probable cause, on the
other hand, is one made by the judge to ascertain
whether a warrant of arrest should be issued against the
accused. The judge must satisfy himself that based on
the evidence submitted, there is necessity for placing the
accused under custody in order not to frustrate the ends
of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.44 [Emphasis
ours]
The difference is clear: The executive determination of
probable cause concerns itself with whether there is
enough evidence to support an Information being filed.
The judicial determination of probable cause, on the
other hand, determines whether a warrant of arrest
should be issued.
A warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the
complainant and the witnesses, in the form of searching
questions and answers, that a probable cause exists and
that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of
justice.
BY A REGIONAL TRIAL COURT
 The judge must make a personal determination
of the existence or non-existence of probable
cause for the arrest of the accused. The duty to
make such determination is personal and
exclusive to the issuing judge. He cannot
abdicate his duty and rely on the certification of
the investigating prosecutor that he had
conducted a preliminary investigation in
accordance with law and the Rules of Court, as
amended, and found probable cause for the filing
of the Information.
WHEN INJUNCTION WILL NOT LIE
It is an established doctrine that injunction will not lie to
enjoin a criminal prosecution because public interest
requires that criminal acts be immediately investigated
and prosecuted for the protection of society.
However, it is also true that various decisions of this
Court have laid down exceptions to this rule, among
which are:
a. To afford adequate protection to the constitutional
rights of the accused
b. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of actions
c. When there is a pre-judicial question which is
subjudice
d. When the acts of the officer are without or in excess
of authority
e. Where the prosecution is under an invalid law,
ordinance or regulation
f. When double jeopardy is clearly apparent
g. Where the court has no jurisdiction over the offense
h. Where there is a case of persecution rather than
prosecution
i. Where the charges are manifestly false and motivated
by the lust for vengeance
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied
k. Preliminary injunction has been issued by the
Supreme Court to prevent the threatened unlawful arrest
of petitioners
INFERIOR COURTS
EXAMINATION OF
COMPLAINANT/APPLICANT AND WITNESS
Sec. 6. When warrant of arrest may issue.
(b) By the Municipal Trial Court. If the municipal trial
judge conducting the preliminary investigation is
satisfied after an examination in writing and under oath
4
of the complainant and his witnesses in the form of
searching questions and answers, that a probable cause
exists and that there is a necessity of placing the
respondent under immediate custody in order not to
frustrate the ends of justice, he shall issue a warrant of
arrest.
There are three (3) conditions that must concur for the
issuance of the warrant of arrest by the municipal judge
during a preliminary investigation. The investigating
judge must:
1. Have examined in writing and under oath the
complainant and his witnesses by searching
questions and answers;
2. Be satisfied that a probable cause exists; and
3. That there is a need to place the respondent
under immediate custody in order not to frustrate
the ends of justice.
NOT MANDATORY/ AUTOMATIC TO ISSUE
WARRANT OF ARREST
Even if the judge finds probable cause, it is not
mandatory for him to issue a warrant of arrest. He must
further determine the necessity of placing the respondent
under immediate custody in order not to frustrate the
ends of justice.
It is improper for a municipal judge to issue a warrant of
arrest without any finding that it was necessary to place
the accused in immediate custody to prevent frustration
of the ends of justice.
WARRANTLESS ARREST
RULE 113
Sec. 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest
a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and
he has personal knowledge of facts indicating that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.
An arrest without a warrant of arrest, under Section 5
paragraphs (a) and (b) of Rule 113 of the Rules of Court,
as amended, is justified when the person arrested is
caught in flagranti delicto, viz., in the act of committing
an offense; or when an offense has just been committed
and the person making the arrest has personal knowledge
of the facts indicating that the person arrested has
committed it.
THE RATIONALE BEHIND LAWFUL ARRESTS,
WITHOUT WARRANT
PEOPLE VS. KAGUI MALASUGUI
To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime
without a warrant, would be to leave society, to a large
extent, at the mercy of the shrewdest, the most expert,
and the most depraved of criminals, facilitating their
escape in many instances.
PERSONAL KNOWLEDGE OF FACTS
Section 5(b), Rule 113, it will be noted, refers to arrests
without warrant, based on "personal knowledge of facts"
acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in
arrests without warrant must be based upon probable
cause, which means an actual belief or reasonable
grounds of suspicion
The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty
of committing the offense, is based on actual facts, i.e.,
supported by circumstances
A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of
the peace officers making the arrest.
Jurisprudence which dictates that appellant, having
voluntarily submitted to the jurisdiction of the trial court,
is deemed to have waived his right to question the
validity of his arrest, thus curing whatever defect may
have attended his arrest.
The legality of the arrest affects only the jurisdiction of
the court over his person. Appellants warrantless arrest
therefore cannot, in itself, be the basis of his acquittal.
JOHN DOE WARRANT
5
  a John Doe warrant satisfies the requirements so
long as it contains a description personae such as
will enable the officer to identify the accused.
The warrant for the apprehension of an unnamed party is
void, "except in those cases where it contains a
description personae such as will enable the officer to
identify the accused."
John Doe search warrants should be the exception and
not the rule. The police should particularly describe the
place to be searched and the person or things to be
seized, wherever and whenever it is feasible. The police
should not be hindered in the performance of their
duties, which are difficult enough of performance under
the best of conditions, by superficial adherence to
technicality or far fetched judicial interference.
SPECIAL RULE ON JUVENILES IN CONFLICT
WITH THE LAW
 A.M. NO. 02-1-18-SC
 R.A. 9344
INVITATIONS
 RA 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
 an invitation to attend a hearing and answer
some questions, which the person invited may
heed or refuse at his pleasure, is not illegal or
constitutionally objectionable.
 Under certain circumstances, however, such an
invitation can easily assume a different
appearance.
Thus, where the invitation comes from a powerful group
composed predominantly of ranking military officers
issued at a time when the country has just emerged from
martial rule and when the suspension of the privilege of
the writ of habeas corpus has not entirely been lifted, and
the designated interrogation site is a military camp, the
same can be easily taken, not as a strictly voluntary
invitation which it purports to be, but as an authoritative
command which one can only defy at his peril
RIGHTS OF THE ACCUSED (LEGIT NA)
CRIMINAL DUE PROCESS
There are certain fundamental rights which cannot be
waived even by the accused himself, but the right of
appeal is not one of them. This right is granted solely for
the benefit of the accused. He may avail of it or not, as
he pleases. He may waive it either expressly or by
implication. When the accused flees after the case has
been submitted to the court for decision, he will be
deemed to have waived his right to appeal from the
judgment rendered against him
The settled rule is that when an accused pleads to the
charge, he is deemed to have waived the right to
preliminary investigation and the right to question any
irregularity that surrounds it.
PRELIMINARY INVESTIGATION BY THE
OMBUDSMAN
The Rules of Procedure of the Office of the Ombudsman
(Ombudsman Rules of Procedure),[34] specifically
Section 2 of Rule II, states:
Evaluation. Upon evaluating the complaint, the
investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency
which has jurisdiction over the case;
d) forwarded to the appropriate officer or official for
fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Thus, the Ombudsman need not conduct a preliminary
investigation upon receipt of a complaint. Should
investigating officers find a complaint utterly devoid of
merit, they may recommend its outright dismissal.
Moreover, it is also within their discretion to determine
whether or not preliminary investigation should be
conducted.
CUSTODIAL INVESTIGATION
AS DIFFERENTIATED FROM PRELIMINARY
INVESTIGATION
Custodial interrogation is the 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.
6
A preliminary investigation is an inquiry or a
proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime
has been committed, and that the respondent is probably
guilty thereof and should be held for trial.
It is well-settled that the foregoing legal formalities
required by the fundamental law of the land apply only
to extra-judicial confessions or admissions obtained
during custodial investigations. Indeed, the rights
enumerated in the constitutional provision exist only in
custodial interrogations, or in-custody interrogation of
accused persons.
A person undergoing preliminary investigation cannot be
considered as being under custodial 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. 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.
CUSTODIAL INTERROGATION
DEFINITION
Custodial interrogation means 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.
Custodial investigation refers to the critical pre-trial
stage when the investigation is no longer a general
inquiry into an unsolved crime but has begun to focus on
a particular person as a suspect
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
NOTES
a person under custodial investigation is guaranteed
certain rights which attach upon the commencement
thereof, viz:
(1) to remain silent,
(2) to have competent and independent counsel
preferably of his own choice, and
(3) to be informed of the two other rights above.
An accused who is on board the police vehicle on the
way to the police station is already under custodial
investigation, and should therefore be accorded his rights
under the Constitution.
RIGHT TO COUNSEL
Right to counsel "applies only to admissions made in a
criminal investigation but not to those made in an
administrative investigation."
The purpose of providing counsel to a person under
custodial investigation is to curb the uncivilized practice
of extracting confession even by the slightest coercion as
would lead the accused to admit something false.
What is sought to be avoided is the evil of extorting from
the very mouth of the person undergoing interrogation
for the commission of an offense, the very evidence with
which to prosecute and thereafter convict him.
These constitutional guarantees have been made
available to protect him from the inherently coercive
psychological, if not physical, atmosphere of such
investigation.
The right to counsel attaches the moment an
investigating officer starts to ask questions to elicit
information on the crime from the suspected offender. It
is at this point that the law requires the assistance of
counsel to avoid the pernicious practice of extorting
forced or coerced admissions or confessions from the
person undergoing interrogation.
In other words, "the moment there is a move or even
urge of said investigators to elicit admissions or
confessions or even plain information which may appear
innocent or innocuous at the time, from said suspect, he
should then and there be assisted by counsel, unless he
waives the right, but the waiver shall be made in writing
and in the presence of counsel
DUTY OF POLICE DURING CUSTODIAL
INVESTIGATION
MIRANDA RIGHTS
The Miranda doctrine requires that:
7
(a) any person under custodial investigation has the right
to remain silent;
(b) anything he says can and will be used against him in
a court of law;
(c) he has the right to talk to an attorney before being
questioned and to have his counsel present when being
questioned; and
(d) if he cannot afford an attorney, one will be provided
before any questioning if he so desires.
In the Miranda case, the Federal Supreme Court made it
clear that what is prohibited is the "incommunicado
interrogation of individuals in a police dominated
atmosphere, resulting in self- incriminating statements
without full warnings of constitutional rights."
The State's right to prosecute criminals may be a great
right but, as Lord Chancellor Sankey observed, it is not
permissible "to do a great right by doing a little wrong".
The Miranda ruling does not mean that the police should
stop a person who enters a police station and states that
he wishes to confess to a crime. It does not affect
volunteered statements of guilt by persons not in police
custody.
He (the accused) 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 these rights must be afforded to
him throughout the interrogation.
After such warnings have been given, and such
opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer
questions or make a statement.
But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against
him.
RIGHTS OF THE ACCUSED UNDER
CUSTODIAL INVESTIGATION
ARTICLE III, SECTION 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 shall be inadmissible in evidence
against him.
It is required that the suspect in custodial interrogation
must be given the following warnings:
(1) He must be informed of his right to remain silent;
(2) He must be warned that anything he says can and
will be used against him; and
(3) He must be told that he has a right to counsel, and
that if he is indigent, a lawyer will be appointed to
represent him
Art. III, 12(1) requires that counsel assisting suspects in
custodial interrogations be competent and independent.
Independent counsel required by Art. III, 12(1) cannot
be a special counsel, public or private prosecutor,
municipal attorney, or counsel of the police whose
interest is admittedly adverse to the accused.
EXTRAJUDICIAL CONFESSION
Extrajudicial confessions are presumed voluntary, and,
in the absence of conclusive evidence showing the
declarants consent in executing the same has been
vitiated, such confession will be sustained.
There are two kinds of involuntary or coerced
confessions treated in this constitutional provision:
(1) those which are the product of third degree methods
such as torture, force, violence, threat, intimidation,
which are dealt with in paragraph 2 of 12, and
(2) those which are given without the benefit of Miranda
warnings, which are the subject of paragraph 1 of the
same 12.
8
CONSEQUENCES OF VIOLATION/ NON-
OBSERVANCE
Confessions and admissions in violation of Section 12
(1), Article III of the Constitution are inadmissible in
evidence against the declarant and more so against third
persons
This is so even if such statements are gospel truth and
voluntarily given.
Such statements are useless except as evidence against
the very police authorities who violated the suspect's
rights.
It is always incumbent upon the prosecution to prove at
the trial that prior to in-custody questioning, the
confessant was informed of his constitutional rights.
The presumption of regularity of official acts does not
prevail over the constitutional presumption of innocence.
RIGHT TO BE HEARD
In criminal cases where the imposable penalty may be
death, as in the present case, the court is called upon to
see to it that the accused is personally made aware of the
consequences of a waiver of the right to present
evidence. In fact, it is not enough that the accused is
simply warned of the consequences of another failure to
attend the succeeding hearings. The court must first
explain to the accused personally in clear terms the exact
nature and consequences of a waiver.
The waiver of the right to present evidence in a criminal
case involving a grave penalty is not assumed and taken
lightly
An invalid waiver of the right to present evidence and be
heard does not per se work to vacate a finding of guilt in
the criminal case or to enforce an automatic remand of
the case to the trial court
RIGHT TO COUNSEL; WAIVER
The rights to remain silent and to counsel may be waived
by the accused provided that the constitutional
requirements are complied with. It must appear clear that
the accused was initially accorded his right to be
informed of his right to remain silent and to have a
competent and independent counsel preferably of his
own choice. In addition, the waiver must be in writing
and in the presence of counsel. If the waiver complies
with the constitutional requirements, then the
extrajudicial confession will be 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 lawyer provided by the investigators is deemed
engaged by the accused where he never raised any
objection against the former's appointment during the
course of the investigation and the accused thereafter
subscribes to the veracity of his statement before the
swearing officer.
RIGHT TO BE INFORMED
The right of a person under investigation "to be
informed" implies a correlative obligation on the part of
the police investigator to explain, and contemplates an
effective communication that results in understanding of
what is conveyed. Short of this, there is a denial of the
right.
APPOINTMENT OF COUNSEL DE OFICIO IN
THE ABSENCE OF RETAINED
COUNSEL/COUNSEL OF RECORD
The choice of counsel by the accused in a criminal
prosecution is not a plenary one. If the chosen counsel
deliberately makes himself scarce, the court is not
precluded from appointing a de oficio counsel, which it
considers competent and independent, to enable the trial
to proceed until the counsel of choice enters his
appearance. Otherwise, the pace of a criminal
prosecution will be entirely dictated by the accused, to
the detriment of the eventual resolution of the case
COMPETENT AND INDEPENDENT COUNSEL
DEFINITION
 that he is willing to fully 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.
NOTE:
The right to counsel is a fundamental right and
contemplates not a mere presence of the lawyer beside
the accused.
EFFECTIVE
In People v. Bacamante, the term "effective and
vigilant counsel" was explained thus:
9
  necessarily and logically [requires] that the
lawyer be present and able to advise and assist
his client from the time the confessant answers
the first question asked by the investigating
officer until the signing of the extrajudicial
confession. 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.
In People v. dela Cruz, an effective counsel was
characterized as:
 one who can be made to act in protection of his
[accused's] rights, and not by merely going
through the motions of providing him with
anyone who possesses a law degree.
 to be an effective counsel, a lawyer need not
challenge all the questions being propounded to
his client. The presence of a lawyer is not
intended to stop an accused from saying
anything which might incriminate him but,
rather, it was adopted in our Constitution to
preclude the slightest coercion as would lead the
accused to admit something false. The counsel,
however, should never prevent an accused from
freely and voluntarily telling the truth
N.B. LIMITATION
However, the foregoing rule is not intended to deter to
the accused from confessing guilt if he voluntarily and
intelligently so desires, but to protect him from admitting
what he is being coerced to admit although untrue. To be
an effective counsel, a lawyer need not challenge all the
questions being propounded to his client.
The presence of a lawyer is not intended to stop an
accused from saying anything which might incriminate
him; but, rather, it was adopted in our Constitution to
preclude the slightest coercion on the accused to admit
something false. The counsel should never prevent an
accused from freely and voluntarily telling the truth.
It stresses the need to accord the accused, under the
uniquely stressful conditions of a custodial investigation,
an informed judgment on the choices explained to him
by a diligent and capable lawyer.
An effective and vigilant counsel necessarily and
logically requires that the lawyer be present and able to
advise and assist his client from the time the confessant
answers the first question asked by the investigating
officer until the signing of the extrajudicial confession.
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.
The right to counsel has been written into our
Constitution in order to prevent the use of duress and
other undue influence in extracting confessions from a
suspect in a crime.
The lawyer’s role cannot be reduced to being that of a
mere witness to the signing of a pre-prepared confession,
even if it indicated compliance with the constitutional
rights of the accused. The accused is entitled to effective,
vigilant and independent counsel.145 Where the
prosecution failed to discharge the State’s burden of
proving with clear and convincing evidence that the
accused had enjoyed effective and vigilant counsel
before he extrajudicially admitted his guilt, the
extrajudicial confession cannot be given any probative
value.
NATURE AND CAUSE OF THE ACCUSATION
What controls is not the title of the information or the
designation of the offense but the actual facts recited in
the information.
In other words, it is the recital of facts of the commission
of the offense, not the nomenclature of the offense, that
determines the crime being charged in the information.
The real nature of the criminal charge is determined not
from the caption or preamble of the information, or from
the specification of the provision of law alleged to have
been violated, which are mere conclusions of law, but by
the actual recital of the facts in the complaint or
information.
Every element of the offense must be stated in the
information. What facts and circumstances are necessary
10
to be included therein must be determined by reference failure to raise the same at the opportune time, i.e.,
to the definitions and essentials of the specified crimes. before he entered his plea.
The requirement of alleging the elements of a crime in Whenever a protection given by the Constitution is
the information is to inform the accused of the nature of waived by the person entitled to that protection, the
the accusation against him so as to enable him to presumption is always against the waiver.
suitably prepare his defense. The presumption is that the
Consequently, the prosecution must prove with strongly
accused has no independent knowledge of the facts that
convincing evidence to the satisfaction of this Court that
constitute the offense
indeed the accused willingly and voluntarily submitted
The reason of the requirement in the Rules is to enable his confession and knowingly and deliberately
the accused to suitably prepare his defense. manifested that he was not interested in having a lawyer
assist him during the taking of that confession.
COMPLIANCE WITH THE REQUIREMENT TO
INFORM THE PERSON DETAINED OF RIGHTS When the Constitution requires a person under
investigation "to be informed" of his right to remain
It is settled that one's right to be informed of the right to
silent and to counsel, it must be presumed to
remain silent and to counsel contemplates the
contemplate the transmission of meaningful information
transmission of meaningful information rather than just
rather than just the ceremonial and perfunctory recitation
the ceremonial and perfunctory recitation of an abstract
of an abstract constitutional principle.
constitutional principle.
As a rule, therefor, it would not be sufficient for a police
It is not enough for the interrogator to merely repeat to
officer just to repeat to the person under investigation the
the person under investigation the provisions of Section
provisions of Section 20, Article IV of the Constitution.
12, Article III of the 1987 Constitution; the former must
He is not only duty-bound to tell the person the rights to
also explain the effects of such provision in practical
which the latter is entitled; he must also explain their
terms — e.g., what the person under interrogation may
effects in practical terms, e.g., what the person under
or may not do — and in a language the subject fairly
interrogation may or may not do, and in a language the
understands.
subject fairly understands.
The right to be informed carries with it a correlative
In other words, the right of a person under interrogation
obligation on the part of the police investigator to
"to be informed" implies a correlative obligation on the
explain, and contemplates effective communication
part of the police investigator to explain, and
which results in the subject's understanding of what is
contemplates an effective communication that results in
conveyed. Since it is comprehension that is sought to be
understanding what is conveyed. Short of this, there is a
attained, the degree of explanation required will
denial of the right, as it cannot truly be said that the
necessarily vary and depend on the education,
person has been "informed" of his rights. Now, since the
intelligence, and other relevant personal circumstances
right "to be informed" implies comprehension, the
of the person undergoing investigation.
degree of explanation required will necessary vary,
In further ensuring the right to counsel, it is not enough depending upon the education, intelligence and other
that the subject is informed of such right; he should also relevant personal circumstances of the person under
be asked if he wants to avail of the same and should be investigation. Suffice it to say that a simpler and more
told that he could ask for counsel if he so desired or that lucid explanation is needed where the subject is
one could be provided him at his request. If he decides unlettered.
not to retain a counsel of his choice or avail of one to be
provided for him and, therefore, chooses to waive his
right to counsel, such waiver, to be valid and effective, POLICE LINE UP
must still be made with the assistance of counsel, who,
When petitioner was Identified by the complainant at the
under prevailing jurisprudence, must be a lawyer
police line-up, he had not been held yet to answer for a
Admittedly, accused is deemed to have waived his right criminal offense.
to question the irregularities attending his arrest for his

11
The police line-up is not a part of the custodial inquest,
hence, he was not yet entitled to counsel.
Thus, it was held that when the process had not yet
shifted from the investigatory to the accusatory as when
police investigation does not elicit a confession the
accused may not yet avail of the services of his lawyer
The stage of an investigation wherein a person is asked
to stand in a police line-up has been held to be outside
the mantle of protection of the right to counsel because it
involves a general inquiry into an unsolved crime and is
purely investigatory in nature.
It has also been held that an uncounseled identification at
the police line-up does not preclude the admissibility of
an in-court identification.
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.
CONFESSIONS DIFFERENTIATED FROM
ADMISSION
REQUIREMENTS FOR CONFESSION TO BE
VALID AND ADMISSIBLE
EXCEPTIONAL CASES ON UNCOUNSELED
CONFESSIONS NOT HELD TO BE EXCLUDED
It has been held that the constitutional procedures on
custodial investigation do not apply to a spontaneous
statement, not elicited through questioning by the
authorities, but given in an ordinary manner whereby
appellant orally admitted having committed the crime.
What the Constitution bars is the compulsory disclosure
of incriminating facts or confessions. The rights under
Section 12 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.
Appellant's [oral] confessions to the newsmen are not
covered by Section 12(1) and (3) of Article III of the
Constitution.
The Bill of Rights does not concern itself with the
relation between a private individual and another
individual.
It governs the relationship between the individual and
the State. The prohibitions therein are primarily
addressed to the State and its agents.
The constitutional guarantees during custodial
investigation do not apply to spontaneous statements not
elicited through questioning by the authorities and given
during ordinary conversation or during media interviews,
whereby the suspect orally admits the commission of the
crime.
Our ruling in that case does not, however, authorize the
police to obtain confessions they cannot otherwise obtain
through media reporters who are acting for the police.
RIGHT TO TRIAL
TRIAL
An accused's right to "have a speedy, impartial, and
public trial" is guaranteed in criminal cases by Section
14 (2) of Article III of the Constitution. This right to a
speedy trial may be defined as one free from vexatious,
capricious and oppressive delays, its "salutary objective"
being to assure that an innocent person may be free from
the anxiety and expense of a court litigation or, if
otherwise, of having his guilt determined within the
shortest possible time compatible with the presentation
and consideration of whatsoever legitimate defense he
may interpose. Intimating historical perspective on the
evolution of the right to speedy trial, we reiterate the old
legal maxim, "justice delayed is justice denied." This oft-
repeated adage requires the expeditious resolution of
disputes, much more so in criminal cases where an
accused is constitutionally guaranteed the right to a
speedy trial.
The right of the accused to a speedy trial and to a speedy
disposition of the case against him was designed to
prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time,
and to prevent delays in the administration of justice by
mandating the courts to proceed with reasonable
dispatch in the trial of criminal cases. Such right to a
speedy trial and a speedy disposition of a case is violated
only when the proceeding is attended by vexatious,
capricious and oppressive delays. The inquiry as to
whether or not an accused has been denied such right is
not susceptible by precise qualification. The concept of a
speedy disposition is a relative term and must
necessarily be a flexible concept.
In determining whether the accused has been deprived of
his right to a speedy disposition of the case and to a
speedy trial, four factors must be considered: (a) length
of delay; (b) the reason for the delay; (c) the defendant's
assertion of his right; and (d) prejudice to the defendant.
12
Closely related to the length of delay is the reason or
justification of the State for such delay. Different
weights should be assigned to different reasons or
justifications invoked by the State.
TRIAL IN ABSENTIA
Under Section 21, Rule 11411 of the Revised Rules of
Criminal Procedure, the defendant’s absence merely
renders his bondsman potentially liable on its bond
(subject to cancellation should the bondsman fail to
produce the accused within 30 days); the defendant
retains his standing and, should he fail to surrender, will
be tried in absentia and could be convicted or acquitted.
Indeed, the 30-day period granted to the bondsman to
produce the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s
status to that of a fugitive without standing.
Art. III, 14(2) of the Constitution authorizing trials in
absentia allows the accused to be absent at the trial but
not at certain stages of the proceedings, to wit:
(a) at arraignment and plea, whether of innocence or of
guilt,
(b) during trial whenever necessary for identification
purposes, and
(c) at the promulgation of sentence, unless it is for a light
offense, in which case the accused may appear by
counsel or representative.
At such stages of the proceedings, his presence is
required and cannot be waived.
As pointed out in Borja v. Mendoza, in an opinion by
Justice, later Chief Justice, Enrique Fernando, there can
be no trial in absentia unless the accused has been
arraigned.
CONCEPT OF SPEEDY TRIAL
Section 16, Article III of the 1987 Constitution provides
that "All persons shall have the right to speedy
disposition of their cases before all judicial, quasi-
judicial, or administrative bodies."
Castañeda, the Court called on courts to be the last to
set an example of delay and oppression in the
administration of justice and it is the moral and legal
obligation of the courts to see to it that the criminal
proceedings against the accused come to an end and that
they be immediately discharged from the custody of the
law.
Exhaustively explained in Corpuz v. Sandiganbayan,
an accuseds right to speedy trial is deemed violated only
when the proceeding is attended by vexatious,
capricious, and oppressive delays.
In determining whether petitioner was deprived of this
right, the factors to consider and balance are the
following:
(a) duration of the delay;
(b) reason therefor;
(c) assertion of the right or failure to assert it; and
(d) prejudice caused by such delay.
It must be noted, however, that the right to speedy
disposition of cases should be understood to be a relative
or flexible concept such that a mere mathematical
reckoning of the time involved would not be sufficient.
Jurisprudence dictates that the right is deemed violated
only when the proceedings are attended by vexatious,
capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured; or
even without cause or justifiable motive, a long period of
time is allowed to elapse without the party having his
case tried.
TESTS:
In Barker v. Wingo, the United States Supreme Court
was confronted for the first time with two rigid
approaches on speedy trial as ways of eliminating some
of the uncertainty which courts experience protecting the
right.
Fixed-time period
 which holds the view that the Constitution
requires a criminal defendant to be offered a trial
within a specified time period.
The demand-waiver rule
 which provides that a defendant waives any
consideration of his right to speedy trial for any
period prior to which he has not demanded trial.
Under this rigid approach, a prior demand is a
13
 necessary condition to the consideration of the A more neutral reason such as negligence or
speedy trial right. overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate
The fixed-time period was rejected because there is no
responsibility for such circumstances must rest with the
constitutional basis for holding that the speedy trial can
government rather than with the defendant. Finally, a
be quantified into a specific number of days or months.
valid reason, such as a missing witness, should serve to
The demand-waiver rule was likewise rejected because
justify appropriate delay.
aside from the fact that it is inconsistent with this Courts
pronouncements on waiver of constitutional rights, it is The defendants responsibility to assert his right.
insensitive to a right which we have deemed
The strength of his efforts will be affected by the length
fundamental.
of the delay, to some extent by the reason for the delay,
BALANCING TEST and most particularly by the personal prejudice, which is
not always readily identifiable, that he experiences.
The Court went on to adopt a middle ground: the
balancing test, in which the conduct of both the The more serious the deprivation, the more likely a
prosecution and defendant are weighed. defendant is to complain. The defendants assertion of his
speedy trial right, then, is entitled to strong evidentiary
Mr. Justice Powell, explained the concept, thus:
weight in determining whether the defendant is being
A balancing test necessarily compels courts to approach deprived of the right.
speedy trial cases on an ad hoc basis.
We emphasize that failure to assert the right will make it
We can do little more than identify some of the factors difficult for a defendant to prove that he was denied a
which courts should assess in determining whether a speedy trial.
particular defendant has been deprived of his right.
Prejudice to the defendant.
Though some might express them in different ways, we
Prejudice, of course, should be assessed in the light of
identify four such factors: Length of delay, the reason
the interests of defendants which the speedy trial right
for the delay, the defendants assertion of his right, and
was designed to protect.
prejudice to the defendant.
This Court has identified three such interests:
FACTORS:
(i) to prevent oppressive pretrial incarceration;
1. The length of the delay;
2. is to some extent a triggering mechanism. (ii) to minimize anxiety and concern of the accused; and
3. Until there is some delay which is presumptively
(iii) to limit the possibility that the defense will be
prejudicial, there is no necessity for inquiry into
impaired.
the other factors that go into the balance.
Of these, the most serious is the last, because the
Nevertheless, because of the imprecision of the right to
inability of a defendant adequately to prepare his case
speedy trial, the length of delay that will provoke such
skews the fairness of the entire system. If witnesses die
an inquiry is necessarily dependent upon the peculiar
or disappear during a delay, the prejudice is obvious.
circumstances of the case. To take but one example, the
There is also prejudice if defense witnesses are unable to
delay that can be tolerated for an ordinary street crime is
recall accurately events of the distant past. Loss of
considerably less than for a serious, complex conspiracy
memory, however, is not always reflected in the record
charge.
because what has been forgotten can rarely be shown.
The reason the government assigns to justify the delay.
Suspicion and often, hostility. His financial resources
Here, too, different weights should be assigned to may be drained, his association is curtailed, and he is
different reasons. A deliberate attempt to delay the trial subjected to public obloquy.
in order to hamper the defense should be weighted
CONCEPT OF PUBLIC TRIAL
heavily against the government.
AQUINO

14
[a] trial of any kind or in any court is a matter of serious
importance to all concerned and should not be treated as
a means of entertainment, and to so treat it deprives the
court of the dignity which pertains to it and departs from
the orderly and serious quest for truth for which our
judicial proceedings are formulated.
The observation that [m]assive intrusion of
representatives of the news media into the trial itself can
so alter and destroy the constitutionally necessary
atmosphere and decorum stands.
ESTRADA
It held that [t]he propriety of granting or denying the
instant petition involve[s] the weighing out of the
constitutional guarantees of freedom of the press and the
right to public information, on the one hand, and the
fundamental rights of the accused, on the other hand,
along with the constitutional power of a court to control
its proceedings in ensuring a fair and impartial trial.
RIGHT TO CONFRONTATION
The right of a party to confront and cross-examine
opposing witnesses in a judicial litigation, be it criminal
or civil in nature, or in proceedings before administrative
tribunals with quasi-judicial powers, is a fundamental
right which is part of due process.
This right, however, has always been understood as
requiring not necessarily an actual cross-examination but
merely an opportunity to exercise the right to cross-
examine if desired. What is proscribed by statutory norm
and jurisprudential precept is the absence of the
opportunity to cross-examine.
There is a great deal of difference between the face-to-
face confrontation in a public criminal trial in the
presence of the presiding judge and the cross-
examination of a witness in a foreign place outside the
courtroom in the absence of a trial judge
The main and essential purpose of requiring a witness to
appear and testify orally at a trial is to secure for the
adverse party the opportunity of cross-examination. "The
opponent", according to an eminent authority, "demands
confrontation, not for the idle purpose of gazing upon
the witness, or of being gazed upon by him, but for the
purpose of cross examination which cannot be had
except by the direct and personal putting of questions
and obtaining immediate answers." There is also the
advantage of the witness before the judge, and it is this –
it enables the judge as trier of facts "to obtain the elusive
and incommunicable evidence of a witness' deportment
while testifying, and a certain subjective moral effect is
produced upon the witness. It is only when the witness
testifies orally that the judge may have a true idea of his
countenance, manner and expression, which may
confirm or detract from the weight of his testimony.
Certainly, the physical condition of the witness will
reveal his capacity for accurate observation and memory,
and his deportment and physiognomy will reveal clues to
his character. These can only be observed by the judge if
the witness testifies orally in court
The right of confrontation, on the other hand, is held to
apply specifically to criminal proceedings and to have a
twofold purpose: (1) to afford the accused an
opportunity to test the testimony of witnesses by cross-
examination, and (2) to allow the judge to observe the
deportment of witnesses. The Court explained in People
v. Seneris, that the constitutional requirement "insures
that the witness will give his testimony under oath, thus
deterring lying by the threat of perjury charge; it forces
the witness to submit to cross-examination, a valuable
instrument in exposing falsehood and bringing out the
truth; and it enables the court to observe the demeanor of
the witness and assess his credibility."
As the right of confrontation is intended "to secure the
accused in the right to be tried as far as facts provable by
witnesses as meet him face to face at the trial who give
their testimony in his presence, and give to the accused
an opportunity of cross-examination,"26 it is properly
viewed as a guarantee against the use of unreliable
testimony in criminal trials. In the American case of
Crawford v. Washington,27 the US Supreme Court had
expounded on the procedural intent of the confrontation
requirement, thus:
RIGHT TO BE PRESUMED INNOCENT/
PRESUMPTION OF INNOCENCE
The presumption of innocence of an accused in a
criminal case is a basic constitutional principle, fleshed
out by procedural rules which place on the prosecution
the burden of proving that an accused is guilty of the
offense charged by proof beyond reasonable doubt.
Corollary thereto, conviction must rest on the strength of
the prosecutions evidence and not on the weakness of the
defense
The burden of proof placed on the Prosecution arises
from the presumption of innocence in favor of the
accused that no less than the Constitution has
15
guaranteed. Conversely, as to his innocence, the accused
has no burden of proof, that he must then be acquitted
and set free should the Prosecution not overcome the
presumption of innocence in his favor.
In other words, the weakness of the defense put up bythe
accused is inconsequential in the proceedings for as long
as the Prosecution has not discharged its burden of proof
in establishing the commission of the crime charged and
in identifying the accused as the malefactor responsible
for it.
RIGHT AGAINST SELF-INCRIMINATION
Once again we lay down the rule that the constitutional
guaranty, that no person shall be compelled in any
criminal case to be a witness against himself, is limited
to a prohibition against compulsory testimonial self-
incrimination. The corollary to the proposition is that, an
ocular inspection of the body of the accused is
permissible. The proviso is that torture of force shall be
avoided. Whether facts fall within or without the rule
with its corollary and proviso must, of course, be
decided as cases arise.
This right construed as the right to remain completely
silent may be availed of by the accused in a criminal
case; Petitioner, as accused, occupies a different tier of
protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the witness
stand and claim the privilege as each question requiring
an incriminating answer is hot at him, an accused may
altogether refuse to take the witness stand and refuse to
answer any all questions.
This right of the accused is extended to respondents in
administrative investigations but only if they partake of
the nature of a criminal proceeding or analogous to a
criminal proceeding. In Galman vs. Pamaran, the Court
reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA
1059) to illustrate the right of witnesses to invoke the
right against self-incrimination not only in criminal
proceedings but also in all other types of suit.
The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused
and not the inclusion of his body in evidence when it
may be material. Purely mechanical acts are not included
in the prohibition as the accused does not thereby speak
his guilt, hence the assistance and guiding hand of
counsel is not required. (People vs. Olvis, 238 Phil. 513
[1987]) The essence of the right against self-
incrimination is testimonial compulsion, that is, the
giving of evidence against himself through a testimonial
act.
The right against self-incrimination, when applied to a
criminal trial, is contained in this terse injunction – no
person shall be compelled to be a witness against
himself. In other words, he may not be required to take
the witness stand. He can sit mute throughout the
proceedings. His right to counsel is expressed in the
same laconic style: he shall enjoy the right to be heard
by himself and counsel. This means inversely that the
criminal prosecution cannot proceed without having a
counsel by his side. These are the traditional rights of the
accused in a criminal case. They exist and may be
invoked when he faces a formal indictment and trial for
a criminal offense. But since Miranda vs Arizona 384
US 436, the law has come to recognize that an accused
needs the same protections even before he is brought to
trial. They arise at the very inception of the criminal
process – when a person is taken into custody to answer
to a criminal offense. For what a person says or does
during custodial investigation will eventually be used as
evidence against him at the trial and, more often than
not, will be the lynchpin of his eventual conviction. His
trial becomes a parody if he cannot enjoy from the start
the right against self-incrimination and to counsel.
It was never intended to hamper the traditional law-
enforcement function to investigate crime involving
persons not under restraint.
BAIL
DEFINITION
 "the security required and given for the release
of a person who is in the custody of the law, that
he will appear before any court in which his
appearance may be required as stipulated in the
bail bond or recognizance”
Bail is the security required by the court and given by
the accused to ensure that the accused appears before the
proper court at the scheduled time and place to answer
the charges brought against him or her. It is awarded to
the accused to honor the presumption of innocence until
his guilt is proven beyond reasonable doubt, and to
enable him to prepare his defense without being subject
to punishment prior to conviction
RULES:
16
Only those persons who have been either arrested,
detained or otherwise deprived of their liberty will ever
have occasion to seek the benefits of said provision.
Therefore, in narrow cases involving special
appearances, an accused can invoke the processes of the
court even though there is neither jurisdiction over the
person nor custody of the law. However, if a person
invoking the special jurisdiction of the court applies for
bail, he must first submit himself to the custody of the
law.
If we allow the granting of bail to persons not in the
custody of the law, it is foreseeable that many persons
who can afford the bail will remain at large, and could
elude being held to answer for the commission of the
offense if ever he is proven guilty
But in order that a person can invoke the constitutional
precept, it is not necessary that he should wait until a
formal complaint or information is filed against him.
From the moment he is placed under arrest, detention or
restraint by the officers of the law, he can claim this
guarantee of the Bill of Rights, and this right he retains
unless and until he is charged with a capital offense and
evidence of his guilt is strong.
The purpose of bail is to secure one's release and it
would be incongruous to grant bail to one who is free.
Thus, `bail is the security required and given for the
release of a person who is in the custody of the law.'
(Rule 110, section 1), and evidently the accused do not
come within its purview.
The purpose for bail is to guarantee the appearance of
the accused at the trial, or whenever so required by the
court. The amount should be high enough to assure the
presence of the accused when required but no higher
than is reasonably calculated to fulfill this purpose.
A bail application does not only involve the right of the
accused to temporary liberty, but likewise the right of
the State to protect the people and the peace of the
community from dangerous elements. These two rights
must be balanced by a magistrate in the scale of justice,
hence, the necessity for hearing to guide his exercise of
jurisdiction
GUIDELINES IN BAIL FIXING, which may be
summarized as follows:
(1) ability of the accused to give bail;
(2) nature of the offense;
(3) Penalty for the offense charged;
(4) character and reputation of the accused;
(5) health of the accused;
(6) character and strength of the evidence;
(7) probability of the accused appearing in trial;
(8) forfeiture of other bonds;
(9) whether the accused was a fugitive from justice when
arrested; and
(10) if the accused is under bond for appearance at trial
in other cases.
But, at bottom, in bail fixing, "the principal factor
considered, to the determination of which most other
factors are directed, is the probability of the appearance
of the accused, or of his flight to avoid punishment."
Of importance then is the possible penalty that may be
meted. Of course penalty depends to a great extent upon
the gravity of offense.
DUTIES OF THE TRIAL JUDGE IN CASE AN
APPLICATION FOR BAIL IS FILED:
1. In all cases, whether bail is a matter of right or
of discretion, notify the prosecutor of the
hearing of the application for bail or require him
to submit his recommendation (Section 18, Rule
114 of the Rules of Court as amended)
2. Where bail is a matter of discretion, conduct a
hearing of the application for bail regardless of
whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to
exercise its sound discretion; (Section 7 and 8,
supra)
3. Decide whether the guilt of the accused is strong
based on the summary of evidence of the
prosecution;
4. If the guilt of the accused is not strong,
discharge the accused upon the approval of the
bailbond (Section 19, supra) Otherwise petition
should be denied.[39]
RULES ON AVAILABILITY OF BAIL TO AN
ACCUSED:
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1. Admission to bail is a matter of right at any stage of
the action where the charge is not for a capital offense or
is not punishable by reclusion perpetua; [Sec. 3, Rule
114, 1985 Rules on Crim. Procedure
2. Regardless of the stage of the criminal prosecution, no
bail shall be allowed if the accused is charged with a
capital offense or of an offense punishable by reclusion
perpetua and the evidence of guilt is strong; [Idem].
3. Even if a capital offense is charged and the evidence
of guilt is strong, the accused may still be admitted to
bail in the discretion of the court if there are strong
grounds to apprehend that his continued confinement
will endanger his life or result in permanent impairment
of health, [De la Rama vs. People's Court, 43 O.G. No.
10, 4107 (1947)] but only before judgment in the
regional trial court; and
4. No bail shall be allowed after final judgment, unless
the accused has applied for probation and has not
commenced to serve sentence, [Section 21, Rule 114,
1985 Rules of Court] the penalty and offense being
within the purview of the probation law."
PRESENCE OF ANY OF WHICH COULD
PRECLUDE THE GRANT OF BAIL
(a) That the accused is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
(b) That the accused is found to have previously escaped
from legal confinement, evaded sentence, or has violated
the conditions of his bail without valid justification;
(c) That the accused committed the offense while on
probation, parole, or under conditional pardon;
(d) That the circumstances of the accused or his case
indicate the probability of flight if released on bail; or
(e) That there is undue risk that during the pendency of
the appeal, the accused may commit another crime."
RIGHT TO BAIL (WHEN A MATTER OF RIGHT
AND WHEN A MATTER OF DISCRETION)
It is a matter of right when the offense charged is
punishable by any penalty lower than reclusion perpetua.
To that extent the right is absolute.
Upon the other hand, if the offense charged is punishable
by reclusion perpetua bail becomes a matter of
discretion. It shall be denied if the evidence of guilt is
strong. The court's discretion is limited to determining
whether or not evidence of guilt is strong. But once it is
determined that the evidence of guilt is not strong, bail
also becomes a matter of right. . . .
The clear implication therefore, is that if an accused who
is charged with a crime punishable by reclusion perpetua
is convicted by the trial court and sentenced to suffer
such a penalty, bail is neither a matter of right on the part
of the accused nor of discretion on the part of the court.
In such a situation, the court would not have only
determined that the evidence of guilt is strong — which
would have been sufficient to deny bail even before
conviction — it would have likewise ruled that the
accused's guilt has been proven beyond reasonable
doubt. Bail must not then be granted to the accused
during the pendency of his appeal from the judgment of
conviction.
The arraignment of an accused is not a prerequisite to
the conduct of hearings on his petition for bail. A person
is allowed to petition for bail as soon as he is deprived of
his liberty by virtue of his arrest or voluntary surrender.
An accused need not wait for his arraignment before
filing a petition for bail.
For when bail is a matter of right, an accused may apply
for and be granted bail even prior to arraignment.
The ruling in Lavides also implies that an application
for bail in a case involving an offense punishable by
reclusion perpetua to death may also be heard even
before an accused is arraigned
WAIVER OF RIGHT TO BAIL
 right to bail is another of the constitutional rights
which can be waived. It is a right which is personal to
the accused and whose waiver would not be contrary to
law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right
recognized by law.
DUTY OF POLICE DURING CUSTODIAL
INVESTIGATION (BAIL)
From the moment he is placed under arrest, or is
detained or restrained by the officers of the law, he can
claim the guarantee of his provisional liberty under the
Bill of Rights, and he retains his right to bail unless he is
charged with a capital offense, or with an offense
punishable with reclusion perpetua or life imprisonment,
and the evidence of his guilt is strong.
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WHEN ALLOWED EVEN IF “DISCRETION”
This national commitment to uphold the fundamental
human rights as well as value the worth and dignity of
every person has authorized the grant of bail not only to
those charged in criminal proceedings but also to
extraditees upon a clear and convincing showing:
(1) that the detainee will not be a flight risk or a danger
to the community; and
(2) that there exist special, humanitarian and compelling
circumstances.
That all persons shall before conviction be bailable
except when charge is a capital offense and the evidence
of guilt is strong. the general rule, therefore, is that all
persons, whether charged or not yet charges, are, before
their conviction, entitled to provisional release on bail,
the only exception being where the charge is a capital
offense and the evidence of guilt is found to be strong.
At the hearing of the application for bail, the burden of
showing that the case falls within the exception is on the
prosecution, according to Rule 110, section 7.
The determination of whether or not the evidence of
guilt is strong is, as stated in Herras Teehankee case, a
matter of judicial discretion.
This discretion, by the very nature of things, may rightly
be exercise only after the evidence is submitted to the
court at the hearing.
• Neither under the old nor under the new Rules is there
any specific provision defining what kind of hearing it
should be, but in the two cases cited at the footnote
hereof it was stated that the hearing should be summary
or otherwise in the discretion of the court.
• "By 'summary hearing,' this Court added, "we mean
such brief and speedy method of receiving and
considering the evidence of guilt as is practicable and
consistent with the purpose of the hearing which is
merely to determine the weight of the evidence for
purposes of bail.
• On such hearing, the court does not sit to try the merits
or to enter into any nice inquiry as to the weight that
ought to be allowed to the evidence for or against
accused, nor will it speculate on the outcome of the trial
or on what further evidence may be therein offered and
admitted.' (8 C.J.S. 93, 94.)
• The course of the inquiry may be left to the discretion
of the court which may confine itself to receiving such
evidence as has reference to substantial matters,
avoiding unnecessary thoroughness in the examination
and cross-examination of witnesses and reducing to a
reasonable minimum at the amount of corroboration
particularly on details that are not essential to the
purposes of the hearing."
In Borinaga v. Tamin, a clear guideline on the exercise
of judicial discretion in hearing petitions for bail -
x x x (w)hile the determination of whether or not
evidence of guilt is strong is a matter of judicial
discretion, this discretion by the nature of things may
rightly be exercised only after the evidence is submitted
to the court at such hearing. Whether the motion for bail
of an accused who is in custody in a summary
proceeding or in the course of a regular trial the
prosecution must be given an opportunity to present,
within a reasonable time, all the evidence that it may
desire to introduce before the court may resolve the
motion for bail. If the prosecution should be denied of
such an opportunity, there would be a violation of
procedural due process, and the order of the court
granting bail should be considered void on that ground x
x x (E)ven where the prosecutor refuses to adduce
evidence in opposition to the application to grant and fix
bail, the court may ask the prosecution such questions as
would ascertain the strength of the states evidence or
judge the adequacy of the amount of bail x x x
DOUBLE JEOPARDY
Double jeopardy exists when the following requisites are
present: (1) a first jeopardy attached prior to the second;
(2) the first jeopardy has been validly terminated; and (3)
a second jeopardy is for the same offense as in the first.
A first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and
(e) when the accused has been acquitted or convicted, or
the case dismissed or otherwise terminated without his
express consent.
For a claim of double jeopardy to prosper, the following
requisites must concur:
(1) there is a complaint or information or other formal
charge sufficient in form and substance to sustain a
conviction;
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(2) the same is filed before a court of competent
jurisdiction;
(3) there is a valid arraignment or plea to the charges;
and
(4) the accused is convicted or acquitted or the case is
otherwise dismissed or terminated without his express
consent.
It is the conviction or acquittal of the accused or the
dismissal or termination of the case that bars further
prosecution for the same offense or any attempt to
commit the same or the frustration thereof; or
prosecution for any offense which necessarily includes
or is necessarily included in the offense charged in the
former complaint or information
The proscription against double jeopardy only envisages
appeals based on errors of judgment, but not errors of
jurisdiction.
Jurisprudence recognizes two grounds where double
jeopardy will not attach, these are:
(i) on the ground of grave abuse of discretion amounting
to lack or excess of jurisdiction; and/or
(ii) where there is a denial of a party’s due process
rights.

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