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MODULE 2: (Laws on Human Rights Part II)

LESSON PROPER
RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION

Custodial Rights of a Person - Section 12, Article III of the 1987 Constitution
1. Any person under investigation for the commission of an offense shall have
a. the right to be informed of
i. his right to remain silent and
ii. to have competent and independent counsel
1. preferably of his own choice.
2. IF the person cannot afford the services of counsel,
3. 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 (No person shall be compelled to be a
witness against himself) 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 torture or similar practices, and their families.

Custodial Investigation –
It 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
1. that he has the right to remain silent,
2. that any statement he gives may be used as evidence against him, and
3. that he has the right to the presence of an attorney, either retained or appointed.

The name comes from 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 Dane. Not which follow, but briefly stated, it is this: “the
prosecution may use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it Demonstrate the use of procedural safeguards effective to secure the privilege against self-
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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
⮚ The reading of the Miranda Doctrine or custodial rights by police during his arrest. This carries the
correlative obligation of 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.

REPUBLIC ACT NO. 7438

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION
AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING
PENALTIES FOR VIOLATIONS THEREOF.

Section 1. Statement of Policy. - It is the policy of the Senate to value the dignity of every human being and
guarantee full respect for human rights.
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MODULE 2: (Laws on Human Rights Part II)
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 (1) public officer or (2) employee, or (3) anyone acting under his order or his place, who
a. arrests,
b. detains or
c. 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.

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

o 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.
c) 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 (DiP2 MuSE)
1. parents,
2. elder brothers and sisters
3. his spouse,
4. the municipal mayor,
5. the municipal judge,
6. district school supervisor, or
7. priest or minister of the gospel as chosen by him;
otherwise, such extrajudicial confession shall be INADMISSIBLE AS EVIDENCE IN ANY PROCEEDING.
d) 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.
1. Any person arrested or detained or under custodial investigation SHALL BE ALLOWED VISITS by or
CONFERENCES any member of his immediate family, or (Any Pri – MAN)
a. any medical doctor or
b. priest or religious minister chosen by him or
c. by any member of his immediate family or by his counsel, or
d. by national non-governmental organization duly accredited 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 (Please Be G2ood Now For US)
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MODULE 2: (Laws on Human Rights Part II)
1. spouse, 5. grandparent or grandchild,
2. fiancé or fiancée, 6. uncle or aunt,
3. parent or child, 7. nephew or niece, and
4. brother or sister, 8. guardian or ward
A person who is investigated in connection with an offense he is suspected to have committed without
prejudice to the liability of the "inviting" officer for any violation of law.

Section 3. Assisting Counsel. - Assisting counsel is any lawyer except those directly affected by the case, those
charged with conducting preliminary investigation or those charged with the prosecution of crimes. the assisting
counsel other than the government lawyers shall be entitled to the following fees;
a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies;
b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less grave or
grave felonies;
c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital
offense.

The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is
conducted, provided that if the municipality of city cannot pay such fee, the province Comprising such
municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer must certify that no funds are
available to pay the fees of assisting counsel before the province pays said fees. IN THE ABSENCE OF ANY
LAWYER, NO CUSTODIAL INVESTIGATION SHALL BE CONDUCTED and the suspected person can only be
detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code.

Section 4. Penalty Clause.

a) Any arresting public officer or employee, or any investigating officer, who fails to inform any person arrested,
detained or under custodial investigation of his right to remain silent and to have competent and independent
counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of
imprisonment of not less than eight (8) years but not more than ten (10) years, or both.
b) The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who
has been previously convicted or a similar offense.
c) The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such
investigating officer or in his place, who fails to provide a competent an independent counsel to a person
arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford
the services of his own counsel.
d) Any person who obstructs, prevents or prohibits any lawyer any member of the immediate family of a person
arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister
chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring
privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of
the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years
nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).
e) The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any
detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and
prevent his escape.

a. AI – FTI – ADU = 8 – 0 – 0 to 10 – 0 – 0 + 6K
b. AI – FTI – ADU = 8 – 0 – 0 to 10 – 0 – 0 + 6K + PAD
c. POE – FPCIC – ADU = 8 – 0 – 0 to 10 – 0 – 0 + 6K/PAD
d. AP – POP – (AL/AMIF) ADU = 4 – 0 – 0 to 6 – 0 – 0 + 4K