Lesson IV

The legal rights of suspect in polygraph test

ARTICLE III

Bill of Rights

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 hereof

shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as
well as compensation to and rehabilitation of victims of torture or similar practices, and their
families.

SECTION 17. No person shall be compelled to be a witness against himself.

Legal rights of person under custodial investigation in the Philippines

(1) The rights of an accused person under in-custody investigation are expressly
enumerated in Sec. 12, Art. III of the Constitution, viz:

(a)Any person under investigation for the commission of an offense shall have the
right to be informed of his rights to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel;
(b)No torture, force, violence, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited;
(c)Any confession or admission in violation of this or Sec. 17 (Self-Incrimination
Clause) hereof shall be inadmissible in evidence against him;
(d)The law shall provide for penal and civil sanctions for violation of this section as
well as compensation to aid rehabilitation of victims of torture or similar practice, and their
families.
(2) Under RA 7834, the following are the rights of persons arrested, detained or under
custodial investigation:
(a)Any person arrested, detained or under custodial investigation shall at all times be
assisted by counsel;
(b)Any public officer or employee, or anyone acting under his order or in his place,
who arrests, detains or investigates any person for the commission of an offense shall
inform the latter, in a language known to and understood by him, of his right to remain silent
and to have competent and independent counsel, preferably of his own choice, who shall at
all times be allowed to confer privately with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of his own counsel, he must be
provided with a competent and independent counsel by the investigating officer;
(c)The custodial investigation report shall be reduced to writing by investigating
officer, provided that before such report is signed, or thumb marked 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
counselor in the latter‘s absence, upon a valid waiver, and in the presence of any of the
parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge,
district school supervisor, or priest or minister of the gospel as chosen by him; otherwise,
such extrajudicial confession shall be inadmissible as evidence in any proceeding;
(e)Any waiver by person arrested or detained under the provisions of Art. 125 of the
Revised Penal Code or under custodial investigation, shall be in writing signed by such
person in the presence of his counsel; otherwise such waiver shall be null and void and of
no effect;
(f)Any person arrested or detained or under custodial investigation shall be allowed visits by
his or conferences with any member of his immediate family, or any medical doctor or priest
or religious minister chosen by him or by his counsel, or by any national NGO duly
accredited by the Office of the President. The person ‘s ―immediate family‖ shall include
his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece and guardian or ward.

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

(a)The right to remain silent — Under the right against self-incrimination in Sec. 17,
only an accused has the absolute right to remain silent. A person who is not an accused
may assume the stance of silence only when asked an incriminatory question. Under Sec.
12, however, a person under investigation has the right to refuse to answer any question.
His silence, moreover, may not be used against him (People vs. Alegre and Gordoncillo, 94
SCRA 109);
(b)The right to counsel — Example of those who are not impartial counsel are (1)
Special counsel, private or public prosecutor, counsel of the police, or a municipal attorney
whose interest is adverse to that of the accused; (2) a mayor, unless the accused
approaches him as counselor or adviser; (3) a barangay captain; (4) any other whose
interest may be adverse to that of the accused (People vs. Tomaquin, GR 133188, July 23,
2004);
 (c)The right to be informed of his rights — the right guaranteed here is more than
what is shown in television shows where the police routinely reads out the rights from a note
card; he must also explain their effects in practical terms (People vs. Rojas, 147 SCRA
169). Short of this, there is a denial of the right, as it cannot then truly be said that the
person has been informed of his rights (People vs. Nicandro, 141 SCRA 289).

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

Republic Act No. 7438 April 27, 1992

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 thumb marked 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.

(f) Any person arrested or detained or under custodial investigation shall be allowed
visits by or conferences with any member of his immediate family, or any medical doctor or
priest or religious minister chosen by him or by any member of his immediate family or by
his counsel, or by any national non-governmental organization duly accredited by the
Commission on Human Rights of by any international non-governmental organization duly
accredited by the Office of the President. The person's "immediate family" shall include his
or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild,
uncle or aunt, nephew or niece, and guardian or ward.

As used in this Act, "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.

REPUBLIC ACT N0. 9745

Section 4. Acts of Torture. - For purposes of this Act, torture shall include, but not be limited
to, the following:

(a) Physical torture is a form of treatment or punishment inflicted by a person in authority or

agent of a person in authority upon another in his/her custody that causes severe pain,
exhaustion, disability, or dysfunction of one or more parts of the body, such as:

(1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt
or other similar objects, and jumping on the stomach.

(2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and
other stuff or substances not normally eaten;

(3) Electric shock;

(4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of
pepper or other chemical substances on mucous membranes, or acids or spices directly on
the wound(s);

(5) The submersion of the head in water or water polluted with excrement, urine, vomit
and/or blood until the brink of suffocation;

(6) Being tied or forced to assume fixed and stressful bodily position;
(7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or
rectum, or electrical torture of the genitals;

(8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear,
tongue, etc.;

(9) Dental torture or the forced extraction of the teeth;

(10) Pulling out of fingernails;

(11) Harmful exposure to the elements such as sunlight and extreme cold;

(12) The use of plastic bag and other materials placed over the head to the point of
asphyxiation;

(13) The use of psychoactive drugs to change the perception, memory. alertness or will of a
person, such as:

(i) The administration or drugs to induce confession and/or reduce mental competency; or

(ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and

(14) Other analogous acts of physical torture; and

(b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent

of a person in authority which are calculated to affect or confuse the mind and/or undermine
a person's dignity and morale, such as:

(1) Blindfolding;

(2) Threatening a person(s) or his/fher relative(s) with bodily harm, execution or other
wrongful acts;

(3) Confinement in solitary cells or secret detention places;

(4) Prolonged interrogation;

(5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee
or prisoner;

(6) Causing unscheduled transfer of a person deprived of liberty from one place to another,
creating the belief that he/she shall be summarily executed.
(7) Maltreating a member/s of a person's family.

(8) Causing the torture sessions to be witnessed by the person's family, relatives or any
third party;

(9) Denial of sleep/rest;

(10) Shame infliction such as stripping the person naked, parading him/her in public places,
shaving the victim's head or putting marks on his/her body against his/her will;

(11) Deliberately prohibiting the victim to communicate with any member of his/her family;
and

(12) Other analogous acts of mental/psychological torture