Week 2 - Arrest II (Custodial Investigation + Remedies)

Question 1

When does a custodial investigation begin?

Answer 1

Person is: (1) taken into custody; (2) singled out as a suspect; and (3) police begins to ask questions on the suspect’s participation and the questions tend to elicit an admission.

It has been held repeatedly that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of a crime under investigation and the police officers begin to ask questions on the suspect’s participation therein and which tend to elicit an admission. [People v Pasudag GR 128822; citing People v Pavillare]

Question 2

When does the right to counsel begin?

Answer 2

The right to counsel attaches the moment an investigating officer starts to ask question 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.” [People v Zuela GR 112177; Gamboa v Cruz GR L-56291]

Question 3

What is the effect of an uncounselled extra-judicial confession without a valid waiver?

Answer 3

“An uncounselled extra-judicial confession without a valid waiver of the right to counsel – that is, in writing and in the presence of counsel - is inadmissible evidence.” [People v Zuela GR 112177]

Question 4

When is there a valid waiver of the right to counsel?

Answer 4

There is a valid waiver of the right to counsel when the waiver is made in writing and done in the presence of counsel.

Question 5

Will the absence or scarcity of lawyer be an exception of the right to counsel?

Answer 5

No. The absence or scarcity of lawyers in any given place is not a valid reason for defying the constitutional mandate on counseled confessions. [People v Zuela GR 112177]

Question 6

Will the declaration of an accused (regarding his involvement to the crime) before a private person without the assistance of counsel be held as inadmissible?

Answer 6

No. In People v Zuela, citing People v Maqueda, the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard and understood it.

Question 7

What is the difference between a confession and an admission?

Answer 7

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some facts or circumstance which in itself is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt. [People v Zuela citing Wharton]

Question 8

What are the four fundamental requisites for the admissibility of a confession?

Answer 8

The four fundamental requisites for the admissibility of a confession are (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing. [People v Rodriguez GR 129211; People v. Ordono GR 132154]]

Question 9

What is the presumption regarding an accused who is on board a police vehicle on the way to the police station?

Answer 9

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. [People v Rodriguez GR 129211 citing People v Bolanos]

Question 10

CONST Art III. Sec. 12 (1). A P U I F T C O A O S H T R T B I O H R T R S A T H C A I C P O H O C. I T P C A T S O C H M B P W O. T R C B W E I W A I T P O C.

Answer 10

CONST. Art III. Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

Question 11

CONST. Art III. Sec 12 (2). N T F V T I O A O M W V T F W S B U A H. S D P, S, I, O O S F O D A P.

Answer 11

CONST. Art III. Sec. 12 (2) No torture, force, violence, threat, intimidation or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

Question 12

CONST. Art III. Sec. 12 (3). A C O A O I V O T O S 17 H S B I I E A H.

Answer 12

CONST. Art III. Sec. 12 (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Question 13

CONST. Sec. 12 (4). T L S P F P A C S F V O T S A W A C F T R O V O T O S P A T F.

Answer 13

CONST. Sec. 12 (4). The law shall provide for penal and civil sanctions for violation of this section as well as compensation for rehabilitation of victims of tortures or similar practices, and their families.

Question 14

What does custodial investigation refer to?

Answer 14

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. [People v Rodriguez GR 129211]

Question 15

How has RA 7438 expanded the definition of custodial investigation?

Answer 15

RA 7438 Sec. 2 (f) provides: “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.

Question 16

What are the rights of the accused under custodial investigation?

Answer 16

The rights of the accused under custodial investigation are: (1) to remain silent; (2) to have an independent and competent counsel; (3) to be provided with such counsel, if unable to secure one; (4) to be assisted by one in case of waiver, which should be in writing, of the foregoing; and (5) to be informed of all such rights and of the fact that anything he says can and will be used against him.

Question 17

Is the place a good measure for the existence or absence of a custodial investigation?

Answer 17

No. In People v Bariquit, the Court stated: “the place of interrogation is not at all a reliable barometer to determine the existence or absence of custodial investigation. Of striking materiality and significance is the fact that the tone and manner of questioning by the police, as gleaned from the records, reveal that they already presumed accused-appellants as the perpetrators of the crime and singled them out as the despicable authors thereof.

Question 18

What are the two kinds of involuntary or coerced confessions?

Answer 18

In People v Obrero GR 122142: There are two kinds of involuntary or coerced confessions treated in this constitutional provision (CONST Art III Sec 12): (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 Sec. 12, and (2) those which are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same Sec. 12.

Question 19

What are the Miranda warnings?

Answer 19

Miranda warnings are giving the accused his right to be informed of his (1) right to remain silent and that anything he says can be used against him in Court; (2) have competent and independent counsel preferably of his own choice; and (3) if he cannot secure his own counsel, he shall be provided with one. (Sec. 12 Art III CONST)

Question 20

Are extrajudicial confessions presumed involuntary?

Answer 20

No. In People v Obrero: Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive evidence showing the declarant’s consent in executing the same has been vitiated, such confession will be sustained.

Question 21

You are the counsel for the defense, and the prosecution has presented your client’s extra judicial confession as evidence for his conviction. What are the ways in which you can counter this evidence?

Answer 21

As counsel for the defense, the ways in which to attack this evidence are: (1) present conclusive evidence that the extra-judicial confession was made through third degree methods such as torture, force, violence, threat, intimidation (but this requires presentation of conclusive evidence for such); or (2) that my client’s extra-judicial confession was made without having been given his Miranda rights, or (3) that he was not afforded the right to an competent and independent counsel. All, however, require conclusive evidence.

Question 22

What are the requirements of the assisting counsel for the accused under the Constitution?

Answer 22

Under CONST Art III Sec 12, the assisting counsel for the accused must be: (1) competent; and (2) independent. It is preferable that the counsel by the choice of the accused.

Question 23

What is the effect on any statement elicited from the accused when there is no counsel during the custodial investigation?

Answer 23

If there is no counsel at the start of the custodial investigation any statement elicited from the accused is inadmissible in evidence against him. [People v Ordono]

Question 24

What is the duty of 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?

Answer 24

Sec. 2 RA 7438 (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: (1) 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.

Question 25

What will happen if the person under custodial investigation cannot afford to avail the services of his own counsel?

Answer 25

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. (RA 7438 Sec 2 b)

Question 26

Under RA 7438, what are the requirements before having the custodial investigation report signed or thumb marked?

Answer 26

Sec. 2 c RA 7438: […] (B)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 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.

Question 27

When is a thumb mark permissible in a custodial investigation report?

Answer 27

A thumb mark is permissible when the person arrested or detained does not know how to read and write. (Sec. 2 b RA 7438)

Question 28

Who are the permissible substitutes of a counsel, in case of the counsel’s absence?

Answer 28

In the absence of the accused’s counsel, an extrajudicial confession made by a person arrested or detained may be executed 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 gospel as chosen by him. Provided that a valid waiver is first executed. (A valid waiver must be in writing and made in the assistance of a counsel). [RA 7438 sec 2 d]

Question 29

RA 7438 Sec 2 a. A P A, D O U C I S A A T B A B C.

Answer 29

RA 7438 Sec 2 (a). Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

Question 30

RA 7438 Sec 2 b. A P O O E, O A A U H O O H P, W A, D O I A P F T C O A O S I T L, I A L K T A U B H, O H R T R S A T H C A I C, P O H O C, W S A A T B A T C P W T P A, D O U C I. I S P C A T S O H O C, H M B P W A C A I C B T I O.

Answer 30

RA 7438 Sec 2 (b). Any public officer or employee, or anyone acting under his order or hisplace, 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.

Question 31

RA 7438 Sec 2 c. T C I R S B R T W B T I O, P T B S R I S, O T I T P A O D D N K H T R A W, I S B R A A E T H B H C O B T A C P B T I O I T L O D K T S A O D P, O, S I R S B N A V A O N E W.

(clue: custodial investigation report)

Answer 31

RA 7438 Sec 2 (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.

Question 32

RA 7438 Sec 2. d. A E C M B A P A D O U C I S B I W A S B S P I T P O H C O I T L A, U A V W, A I T P O A O T P, E B A S, H S, T M M, T M J, D S S, O P O M O T G A C B H, O S E C S B I A E I A P.

Answer 32

RA 7438 Sec 2 (d). Any extrajudicial confession made by a person arrested, detained or undercustodial 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.

Question 33

RA 7438 Sec 2 e. A W B A P A O D U T P O A 125 O T R P C, O U C I, S B I W A S B S P I T P O H C; O T W S B N A V A O N E.

Answer 33

RA 7438 Sec 2 (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.

Question 34

RA 7438 Sec 2 f. par. 1. A P A O D O U C I S B A V B O C W A M O H I F, O A M D O P O R M C B H O B A M O H I F O B H C, O B A N N O D A B T C O H R O B A I N O D A B T O O T P. T P “I F” S I H O H S, F O F, P O C, B O S, G O G, U O A, N O N, A G O W.

Answer 34

RA 7438 Sec 2 (f). par. 1. 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 or by any international nongovernmental 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.

Question 35

RA 7438 Sec 2 f. par. 2. A U I T A, “C I” S I T P O I A “I” T A P W I I I C W A O H I S T H C, W P T T L O T “I” O F A V O L.

Answer 35

RA 7438 Sec. 2 (f) par. 2. 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.

Question 36

New York v Quarles doctrine re: exception of Miranda rule

Answer 36

There is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the public safety exception should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer.

Question 37

People v Figueroa GR 134056, doctrine re: exclusion

Answer 37

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.

Question 38

People v Galit GR 51770 doctrine re: form of questioning

Answer 38

Such a long question followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights under the Constitution and our laws. Instead, there should be several short and clear questions, and every right explained in simple words in a dialect or language known to the person under investigation. [People v Galit]

Question 39

When is a lawyer provided by investigators deemed engaged?

Answer 39

A lawyer provided by investigators is deemed engaged by the accused where he never raised any objection against the formers’ appointment (People v Gallardo GR 113684)

Question 40

Why was the “Paliwanag” in the case of People v Continente held valid?

Answer 40

The “paliwanag” in People v Continente was held valid because it was more than a terse and perfunctory reading of the accused’s custodial rights. In the case, the paliwanag included and advice not to give any statement and a warning that any statement obtained may be used in favor or against the accused in Court. They also contain an advice that appellants may engage a lawyer of their own choice, and will be provided with one by the government if they cannot afford one.

Question 41

Is a police line-up part of the custodial investigation?

Answer 41

No, a police line-up is not part of the custodial investigation as long as the inquiry is still in the investigation phase and not on the accusatory phase. (Gamboa v Cruz)

Question 42

Who has the burden of proof to prove the voluntariness of an extrajudicial confession?

Answer 42

In People v Jara 1986, it was held that the prosecution has the burden to prove that an extrajudicial confession was voluntarily given, instead of relying on a presumption and requiring the accused to offset it.

Question 43

People v Andan doctrine re: spontaneous statement

Answer 43

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. [People v Andan GR 116437]

Question 44

What is the exception to the doctrine on spontaneous statement discussed in People v Andan?

Answer 44

The exception is in the case of People v Morada where the Court held that it must be clear that the confessions to the news reporters (or other persons) were given free from any undue influence from the police authorities, and the news reporters acted as news reporters when they were interviewing the accused. Thus, if there is a hint of influence from police authorities, it can be excluded.

Question 45

What does the right of the person to be informed imply?

Answer 45

The right of person under interrogation “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 what is conveyed. Shot of this, there is a denial of the right, as it cannot truly be said that the person has been informed of his rights. [People v Ramos GR 85401-02]

Question 46

Can a Writ of Habeas Corpus lie when an arrest warrant has already been issued?

Answer 46

No, in the case of Ilagan v Enrile, the Court held that the Writ of Habeas Corpus does not lie when the Information and subsequent warrant legitimizing the detention has already been filed in the proper court.

Question 47

Who may file a petition for the writ of habeas corpus?

Answer 47

Any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application. [Velasco v CA GR 118644]

Question 48

When is a writ of habeas corpus not allowed?

Answer 48

Writ is not allowed when person alleged to be restrained of liberty is: (1) in the custody of an officer; (2) under process issued by court or judge or by virtue of a judgment or order of a court of record (and the court or judge had jurisdiction); (3) jurisdiction of court appears AFTER the writ is allowed. (Rule 102 Sec 4)

Question 49

When is the writ of habeas corpus available?

Answer 49

Writ of habeas corpus is available when: (1) where a person continues to be unlawfully denied of one or more of his constitutional freedoms; (2) where there is denial of due process; (3) where the restraints are not merely involuntary but are unnecessary; and (4) where a deprivation of freedom originally valid has later become arbitrary [Moncupa v Enrile GR L-63345]