Rights Of Persons Under Custodial Investigation – Bill Of Rights

The 1973 Philippine Constitution had recognized the rights of persons under custodial investigation as the same first appeared in Article IV, Section 20 which states that:

“No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.”¹

Presently, the 1987 Philippine Constitution² has made some changes on the said provision. It expanded the 1973 version in order to clarify the scope of the right.

It sets apart the right of persons under custodial investigation from the traditional right against self-incrimination in order to emphasize the guarantee of the right to proper treatment of those persons under such investigation.

Rights of Persons under Custodial Investigation

The provision on persons under investigation can now be found in Article III, Section 12 of the 1987 Philippine Constitution which provides that:

“(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.³

(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.⁴

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.⁴

(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.”⁴

Furthermore, this constitutional provision was heavily influenced by two American jurisprudence. The case of Escobedo vs. Illinois⁵ defined custodial investigation as the time 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”. On the other hand, Miranda vs. Arizona⁶ enumerated the rights available to persons under investigation, such as:

(1) At the outset of the investigation, the person in custody must be informed in clear terms that he or she has a right to remain silent;

(2) He or she must be informed that anything he or she says can and will be used against him or her in court;

(3) He or she must be informed that he or she has the right to consult with a lawyer and to have said lawyer with him or her during the custodial investigation;

(4) He or she should be warned that if he or she is indigent, a lawyer will be appointed to represent him or her;

(5) Until an attorney is present, the interrogation must cease the moment he or she asks for a lawyer at any point in the investigation; and

(6) No evidence obtained as a result of the investigation can be used against him if the foregoing protections and warnings are not demonstrated to have been observed.

Miranda Doctrine

The right to remain silent is intrinsically interwoven with the constitutional protection against self-incrimination. Miranda rights serve as a constitutional guide. They give the court with relevant facts on which to base its findings of fact in determining whether any specific questioning amounts to testimonial compulsion or coercion.

In other words, Miranda warnings are intended to safeguard individuals from being coerced into making self-incriminating comments by ensuring that the accused has been fully informed of his or her rights prior to being interrogated.

When do the rights begin to be available?

The 1973 Constitution provides that the rights begin to be available the moment a person had become the focus of investigation and had been taken into custody by the law enforcement operatives.

Moreover, jurisprudence under the 1987 Constitution has consistently followed the Escobedo view that the rights start to be available only when the person is already in custody for which reason it has been referred to as “rights under custodial investigation”. As Justice Regalado puts it in the case of People vs. Marra:⁷

“Custodial investigation involves any 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. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.”⁸

However, it should be noted that R.A. No. 7438⁹ [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] has extended the guarantee to situations wherein an individual has not been formally arrested but has merely been invited for questioning in connection with an offense he is suspected to have committed.

On the contrary, the rights enumerated are not available before police authorities become involved as they do not apply when the confession or admission is made to a private individual. Neither does Section 12 apply to a person who undergoes audit because an audit examiner is not a law enforcement authority as ruled in the case of Navallo vs. Sandiganbayan.¹⁰

It is also not applicable to a situation where a person presents himself to the police and in the process, which does not involve the questioning by the authorities, confesses his guilt to the crime committed.

Unless there is a move on the part of the authorities to extract admissions or confessions, a person placed in a police line-up may not invoke the rights under Section 12, because it is the complainant who is being investigated in a police line-up not the person under investigation. Nevertheless, such person is entitled to rights under Section 12 when he is already under custodial investigation when he has been subjected to a police line-up.

What rights are made available?

There are three rights made available under Paragraph 1 of Section 12, namely:

(1) right to remain silent,

(2) right to counsel, and

(3) right to be informed of such rights.

Under the right to remain silent, a person under investigation has the right to refuse to answer any question made by police authorities; moreover, his mere silence may not be used against him. At the outset, a person under custodial investigation must be informed in clear and unequivocal terms that he has the right to remain silent.

This warning is an absolute requirement in order to overcome the pressures of the interrogation atmosphere and to insure that the person knows he is free to exercise such privilege at that given point in time. Such warning must also be accompanied by the explanation that anything said can and will be used against that person in court which is important in order to apprise the said person of his privilege and the consequences of forgoing it.

A person must also be clearly informed that he has the right to consult with a lawyer and to have the latter with him during the investigation. If a person wishes the assistance of a counsel during or before the investigation begins, the police authorities cannot ignore or deny his request.

The need for counsel in order to protect the privilege also exists for an indigent party wherein a lawyer will be appointed to represent him. The 1987 Constitution specifies that the counsel made available to a person under custodial investigation must be competent, independent, and preferably of such person’s own choice.

These have been added to prevent cases where, during the Marcos Regime, the lawyers made available to detainees were sometimes appointed by the military and thus beholden to the military. However, the phrase ‘preferably of his own choice’ does not mean that a person’s choice of a lawyer is exclusive as to preclude other equally competent and independent lawyers from taking the case.

The case of People vs. Tomaquin¹¹enumerated examples of those who are not impartial counsel:

(1) special counsel, 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 the former as counselor or adviser,

(3) a barangay captain, and

(4) any other whose interest may be adverse to that of the accused.

The right to be informed implies an obligation on the part of the police authority to explain. Such right also contemplates an effective communication which would result in understanding what is conveyed.

Thus, informing the person under investigation of his right to remain silent and to counsel must conceive the transmission of a meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.

It would not be sufficient for a law enforcement officer just to repeat to the person the provisions of the Constitution; such officer is duty-bound to apprise the person of his rights as well as to explain the effects in practical terms. Short of this, there is a denial of the right.

The right to remain silent and to counsel may be waived, and the waiver of these rights is valid only when it is made voluntarily, in writing, and with the presence of counsel. Nonetheless, a valid waiver will not be presumed simply from the mere silence of the accused after warnings are given.

The records must show, or that there must be an evidence which would prove that the person was offered counsel but voluntarily, intelligently, and understandingly rejected the offer. Furthermore, the waiver must be in a language which would clearly manifest the desire to waive the right.

From these rights under paragraph 1 of Section 12, it is worthy to note that there can be no interrogation if a person indicates at any stage of the process that he wishes to consult with a lawyer before speaking.

Similarly, the police may not question the person if such person is alone and indicates that he does not wish to be interrogated. Moreover, the fact that the person may have answered some questions or volunteered some statements does not deprive him of the right to refuse to answer further inquiries.

The rule on coerced confessions is found under Paragraph 2 of Section 12. The Constitution has emphasized the prohibition on coerced confessions by adding “No force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him” under the 1973 version and “Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited” under the 1987 version.

The exclusionary rule laid down in paragraph 3 is broader than the exclusion merely of blatantly coerced confessions because it now covers every form of evidence obtained in violation of Section 12. In the case of People vs. Obrero,¹² it is mentioned that there are two kinds of involuntary or coerced confessions:

(1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation; and

(2) those which are given without the benefit of Miranda warnings.

Any form of coercion whether physical, mental, or emotional stamps the confession with inadmissibility because the free will of the person confessing is essential for its validity. It only shows the care to which the law wishes to insure the voluntariness of confessions.

Moreover, even if the confession is gospel truth, if it were made without the assistance of counsel, it is still inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given.

When do the rights cease to be available?

Rights under Section 12 are terminated when charges are filed against the person. In such situation, Sections 14 and 17 come into play instead to protect the rights of the accused. Consequently, Section 12 is not applicable to persons under preliminary investigation or already charged in court for a crime. Hence, there is no occasion to speak of a person’s right while under custodial investigation.

Conclusion

Civil rights and liberties are valuable rights of human being during the course of his life. This is an offshoot of a broader respect to people’s existence in a civilized world. Without such recognition, our world will be reduced into barbaric environment, where the government of men are superior than the one wielded by law.

It is of this principle that, among others, the right of an individual under custodial investigation is protected as well. He may be subjected to insurmountable pressure where his volition and sense of respect to himself may be greatly diminished.

1. Section 20, Article IV, 1973 Philippine Constitution[↩]
2. 1987 Philippine Constitution[↩]
3. Section 12, Article III, 1987 Philippine Constitution[↩]
4. Ibid.[↩][↩][↩]
5. Escobedo vs. Illinois 378 U.S. 478 [1964][↩]
6. Miranda vs. Arizona 384 U.S. 436 [1966][↩]
7. G.R. No. 108494, September 20, 1994[↩]
8. Ibid.[↩]
9. Republic Act No. 7348[↩]
10. G.R. No. 97214, July 16, 1994[↩]
11. G.R. No. 133188, July 23, 2004[↩]
12. G.R. No. 122142 May 17, 2000[↩]