CUSTODIAL RIGHTS OF A PERSON

Section 12, Article III of the 1987 Constitution

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

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

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible
in evidence.

(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.

Custodial Investigation is any questioning by law enforcement after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way. It refers to the
investigation conducted by law enforcement immediately after arrest for the commission of an offense.
 It begins when a person has been arrested and brought to the custody of law enforcers in which
suspicion is focused on him in particular and questions are asked from him (the suspect) to elicit
admissions or information on the commission of an offense.

What is the Miranda Doctrine?

The Miranda Doctrine means that prior to questioning during custodial investigation, the person must
be warned that he has the right to remain silent, that any statement he gives may be used as evidence
against him, and that he has the right to the presence of an attorney, either retained or appointed.

The name comes from the the U.S. case, Miranda vs. Arizona, 16 L. Ed 2d 694, in which the US
Supreme Court laid down the principle of custodial rights of an accused. It held, thus:

“Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is
this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial investigation, we mean
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. As for the procedural safeguards to
be employed, unless other fully effective means are devised to inform accused persons of their right of
silence and to assure a continuous opportunity to exercise it, the following measures are required: Prior
to any questioning, the person must be warned that he has the right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the presence
of an attorney, either retained or appointed. The defendant may waive effectuation of these rights,
provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any
manner and at any stage of the process that he wishes to consult with an attorney before speaking,
there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he
does not wish to be interrogated, the police may not question him. The mere fact that he may have
answered some questions or volunteered some statements on his own does not deprive him of the
right to refrain from answering any further inquiries until he has consulted with an attorney and
thereafter consents to be questioned.”

What are the rights of a person during custodial investigation?

1. The right to be informed of his rights

– i.e. the reading of the Miranda Doctrine or custodial rights by police during his arrest. This carries the
correlative obligation on the part of the investigator to explain and contemplates effective
communication which results in the subject understanding what is conveyed.

2. The right to remain silent and to be reminded that anything he says can and will be used
against him

– This refers not only to verbal confessions but also to acts. However, mechanical acts that does not
require the use of intelligence (such as providing DNA samples) or to answers to general questions are
not protected under this right.

3. The right to an attorney or to counsel, preferably of his own choice; if not, one will be provided
for him

– This right is absolute and applies even if the accused himself is a lawyer. The right is more
particularly the right to independent and competent An independent counsel is one not hampered with
 any conflicts of interest, and a competent counsel is one who is vigilant in protecting the rights of an
accused.

4. Right against torture, force, violence, threat, intimidation or any other means which vitiate the free
will of the person

5. Right against secret detention places, solitary, incommunicado, or other similar forms of detention

Any confession or admission obtained from the person arrested in violation of these rights are
inadmissible in evidence and cannot be used against said person. This is called the Exclusionary
Rule, i.e. it is excluded from the evidence to be considered by the court during trial. Such confession or
admission is tainted and must be suppressed under the “Fruit of the Poisonous Tree” Doctrine.

Do rights of a suspect during custodial investigation attach as soon as he is invited to the

police station to be investigated in connection with an offense he is suspected to have
committed?

Yes. The practice of issuing an invitation to a person who is investigated in connection with an offense
he is suspected to have committed is part of custodial investigation, as such, the rights of a person
under Section 12, Article III attach.

However, the rights of a suspect during custodial investigation do not generally attach in the following
situations:

1. Police line-up, or during process of identification

2. Spontaneous statements not elicited through questioning but given in an ordinary manner (spur-of-
the-moment statements) – they are considered as part of res gestae
3. Volunteered statements
4. Extrajudicial admission to the prosecutor or a private person (media personnel or TV interview)
5. Investigation made by a citizen or private security officer

It is only when the police investigation is no longer a general inquiry into an unsolved crime but has
begun to focus on the particular suspect who had been taken into custody. It begins when accusatory
questions are initiated when a person is taken into custody and deprived of his freedom of action.

When does the right to counsel attach?

The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts
to ask questions to elicit information and/or confessions or admissions from the respondent / accused.
At such point or stage, the person being interrogated must be assisted by counsel to avoid the
pernicious practice of extorting false or coerced admission or confessions from the lips of the person
undergoing interrogation, for the commission of an offense. (Gamboa vs. Cruz, G.R. No. L-56291, June
27, 1988)

What is meant by the right to counsel?

Any person under investigation must, among other things, be assisted by counsel. Any admission or
confession made by the suspect during interrogation without benefit of counsel is inadmissible in
evidence.

The Court has consistently held that no custodial investigation shall be conducted unless it be in the
presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by
the court upon petition either of the detainee himself, or by anyone in his behalf, and that, while the
right may be waived, the waiver shall not be valid unless made in writing and in the presence of
counsel. (Gamboa vs. Cruz, G.R. No. L-56291, June 27, 1988)

Does a suspect need counsel during identification by police line-up?

The police line-up is not considered as part of the custodial inquest. Hence, the suspect is not yet
entitled, at such stage, to counsel.

“When petitioner was identified by the complainant at the police line-up, he had not been held yet to
answer for a criminal offense. The police line-up is not 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. Since petitioner in the course of his identification in the
police line-up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of
his right to be assisted by counsel because the accusatory process has not yet set in. The police could
not have violated petitioner’s right to counsel and due process as the confrontation between the State
and his had not begun. In fact, when he was identified in the police line-up by the complainant, he did
not give any statement to the police. He was, therefore, not interrogated at all as he was not facing a
criminal charge. Far from what he professes, the police did not, at that stage, exact a confession to be
used against him. For it was not he but the complainant who was being investigated at that time. He
was ordered to sit down in front of the complainant while the latter was being investigated. Petitioner’s
right to counsel had not accrued.” (Gamboa vs. Cruz, G.R. No. L-56291, June 27, 1988)

What is the correct procedure for arresting officers to follow when making arrest and in
conducting custodial investigation?

At the time a person is arrested, it shall be the duty of the arresting officers to inform him of the reason
for the arrest and he must be shown the warrant of arrest, x x x. He shall be informed of his
constitutional rights to remain silent and to counsel and that any statement he might make could be
used against him. The person arrested shall have the right to communicate with his lawyer, a relative,
or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger.
It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee
himself or by anyone in his behalf. The right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel. Any statement obtained in violation of the procedure
herein laid down, whether exculpatory or inculpatory in whole or in part shall be inadmissible in
evidence. (People v. Pinlac, 249 Phil. 114)

How important is the giving of Miranda warnings to the suspect during his arrest?

Any admission or confession made by a suspect during his arrest but without having been read his
Miranda rights are inadmissible. This was the ruling of the Supreme Court in People v. Obrero, G.R.
No. 122142, May 17, 2000.

In that case, the Court held that 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. xxx But what renders the confession of accused-appellant inadmissible is
the fact that accused-appellant was not given the Miranda warnings effectively. Under the Constitution,
an uncounseled statement, such as it is called in the United States from which Art. III, Sec. 12(1) was
derived, is presumed to be psychologically coerced. Swept into an unfamiliar environment and
surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really
needs the guiding hand of counsel.

Now, under the first paragraph of this provision, 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.

Is the mere reading of the Miranda Warnings enough?

A perfunctory reading of the Miranda rights without any effort to find out from the suspect whether he
wanted to have counsel and, if so, whether he had his own counsel or he wanted the police to appoint
one for him is insufficient. Mere ceremonial giving of warnings is inadequate to transmit meaningful
information to the suspect.

In People v. Pinlac, 249 Phil. 114, the Court held that when the Constitution requires a person under
investigation “to be informed” of his right to remain silent and to counsel, it must be presumed to
contemplate the transmission of a meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be
sufficient for a police officer just to repeat to the person under investigation the provisions of the
Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he
must also explain their effects in practical terms. In other words, the right of a 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.
Short of this, there is a denial of the right, as it cannot truly be said that the person has been “informed”
of his rights.

Can a voluntary admission made to the Mayor or media be used against the suspect of a crime?

Yes.

In People v. Andan, G.R. No. 116437, March 3, 1997, the Supreme Court that under these
circumstances, it cannot be successfully claimed that appellant’s confession before the mayor is
inadmissible. It is true that a municipal mayor has “operational supervision and control” over the local
police and may arguably be deemed a law enforcement officer for purposes of applying Section 12(1)
and (3) of Article III of the Constitution. However, appellant’s confession to the mayor was not made in
response to any interrogation by the latter. In fact, the mayor did not question appellant at all. No police
authority ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and
voluntarily sought the mayor for a private meeting. The mayor did not know that appellant was going to
confess his guilt to him. When appellant talked with the mayor as a confidant and not as a law
enforcement officer, his uncounseled confession to him did not violate his constitutional rights. Thus, 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. Hence, we hold that
appellant’s confession to the mayor was correctly admitted by the trial court.

Appellant’s confessions to the media were likewise properly admitted. The confessions were made in
response to questions by news reporters, not by the police or any other investigating officer. We have
 held that statements spontaneously made by a suspect to news reporters on a televised interview are
deemed voluntary and are admissible in evidence.

When is an extrajudicial confession admissible?

It is admissible when:

1. Voluntary
2. Made with assistance of counsel
3. In writing; and
4. Express

What are examples of mechanical acts that are not protected by the right to remain silent?

1. Paraffin test
2. DNA test
3. Examination of the physical body
4. Fingerprinting
5. Being asked to step on a footprint to compare foot size
6. Urine sample

What are not considered as mechanical acts?

1. Handwriting
2. Initials on marked money
3. Signing of inventory receipts in search warrant
4. Reenactment

Can any of these rights be waived?

Only the rights to remain silent and to counsel may be waived. The right to be informed his rights
cannot be waived at any time.

What constitutes a valid waiver of the right to counsel?

The waiver of the right to counsel is valid only when it is made voluntarily, in writing and with the
presence of counsel.

When is the right to remain silent waived?

The right to remain silent is waived when the declaration of the accused acknowledging guilt made to
the police desk officer after the crime was committed. Such spontaneous acknowledgment of guilt to
the police desk officer may be given in evidence against him as part of the res gestae.

When are the rights of a person under custodial investigation terminated?

They are terminated as soon as charges are filed against him. In such case, Sections 14 and 17, Article
III serve to protect his rights as an accused.