Legal

 Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

Chapter 4 - Clinical Lawyering and Counseling

Investigation during the pendency of an action

a) Ocular Inspection

A party litigant may avail the provisions on modes of discovery in order to

aid the Court in the adjudication of the case. One of the modes of discovery that
may be availed by the parties which may allow them to conduct ocular inspection
is found in Rule 27 of the Rules of Court.

Section 1, Rule 27 of the Rules of Court states that:

“Motion for production or inspection; order. — Upon motion

of any party showing good cause therefor, the court in
which an action is pending may:

(a) order any party to produce and permit the inspection

and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things,
not privileged, which constitute or contain evidence material
to any matter involved in the action and which are in his
possession, custody or control, or

(b) order any party to permit entry upon designated land or

other property in his possession or control for the purpose of

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

inspecting, measuring, surveying, or photographing the

property or any designated relevant object or operation
thereon. The order shall specify the time, place and manner
of making the inspection and taking copies and photographs,
and may prescribe such terms and conditions as are just.”

This mode of discovery under Rule 27 is referred to as view of an object.

Such mode of discovery is commonly resorted in the following cases:
• actions for recovery of possession/ownership of real properties
• annulment of title
• eminent domain proceedings
• ejectment proceedings
• land registration cases
• murder and homicide cases where the place of incident is an issue
• arson cases
• crimes of trespass to private property or dwelling
• vehicular incidents

b) Determine the Sufficiency of Evidence

In drafting a pleading or filing a criminal complaint, the lawyer should

know whether he could build a case from his findings and be able to sustain
them in court.

ex. for annulment of title to property

• determine whether the evidence consisting of a deed of sale is simulated
or not, or as to whether or not the certificate of title is a product or
forgery

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

• lawyer may resort to forensic examination by NBI Crime Laboratory

c) Probative Value of Extra-Judicial Confession

• For an extra-judicial confession to sustain a judgment of conviction, it

must be corroborated by evidence of corpus delicti. If the charge is
anchored on an extra-judicial confession, the confession should pass the
test of voluntariness. (People v. Galit, 135 SCRA 465,)

• During custodial investigation, it is necessary that sufficient warnings

to the accused were made before the taking of his confession. Should he
opt to waive his right to counsel, it is necessary that it was made with the
assistance of counsel of his own choice, if not, then one provided by the
interrogator.

Key points regarding the taking of an extra-judicial confession:

• prosecution must show that the suspect understood the
consequence of waiving his right to counsel
• he must be informed that anything he says may be used against
him
• if he desires to be assisted by counsel, State must provide him with
one to assist him during custodial investigation

d) Extra-judicial Confession taken perfunctorily NOT admissible

in evidence – doctrines on strict compliance with specific steps

• when the Constitution required a person under investigation to be

informed of his right to remain silent and to counsel, it must be presumed

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

to contemplate the transmission of meaningful information rather than

abstract constitutional principle (People v. Nicardo, 141 SCRA 289)

• it is not sufficient for a police officer to repeat to the person under

investigation the provisions of Sec. 20, Article IV of the Constitution, he
must also explain their effects impractical terms

• failure to fully inform the person of his rights is a denial of his rights, and
it cannot be truly said that the person has been “informed” of his rights

• for a waiver of right to counsel to be valid, it must be in writing and in the

presence of a counsel, otherwise such waiver is void

• if the records do not show that the accused was assisted by the counsel in
making his wavier, this defect nullifies and renders inadmissible in
evidence his confession (People v. Nolasco, 163 SCRA 623)

e) Basic steps in taking extrajudicial confession

The following steps should be pursued to make an extra-judicial

confession admissible in evidence:
1. at the time of arrest, the arresting officer shall inform the person arrested
of the reason for his arrest;
2. the warrant of arrest must be shown, if any;
3. he shall be informed of his constitutional right to remain silent and to
counsel;
4. he must be informed that any statement that he might make could be
used against him;

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

5. the persona arrested shall have the right to be given sufficient opportunity
to communicate with his lawyer of his own choice, a relative, or anyone
he chooses by the most expedient means, by telephone if possible, or by
letter or messenger;
6. if such person arrested cannot afford the services of his own counsel, he
must be provided with a competent and independent counsel by the
investigating officer;
7. the extrajudicial confession shall be reduced into writing and signed by
the person arrested, detained, or under custodial investigation in the
presence of his counsel;
8. in case the person arrested, detained, or under custodial investigation has
no counsel or in the absence one provided by the investigating officer, no
custodial investigation shall be conducted and the suspected person can
only be detained in accordance with Article 125 of the Revised Penal Code
(Delay in the delivery of detained persons to the proper judicial
authorities);
9. should he waive his right to counsel, such must be in writing, and shall
not be valid unless made with assistance of counsel;
10. should he choose to sign the extrajudicial confession upon a valid waiver
after its contents have been explained to him and understood by him in
the language of his own tongue, he may sign the same in the presence of
any of his parents, elder brothers and sisters, his spouse, the municipal
mayor, the municipal judge, district supervisor, or priest or minster of the
gospel as chosen by him, otherwise, such extra-judicial confession shall be
inadmissible as evidence in any proceeding;
11. any waiver under Art. 125 of the Revised Penal Code shall be in writing
and signed by such person in the presence of his counsel, otherwise the
waiver shall be null and void; and

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

12. after the said person has signed the extrajudicial confession in the
presence of his own counsel or upon a valid waiver, the same shall be
attested and signed by the investigating officer and any of the parents, or
elder brother or sister, or his spouse, or municipal mayor, municipal
judge, district supervisor, or priest or minster of the gospel chose by him.

(f) Evidentiary value of police report, autopsy, medical report, etc.

• police reports of police officers who have conducted an on the spot

investigation of the scene of the incident, autopsy reports and medical
reports of medico-legal experts who have examined the type of wounds,
cause of death, and trajectory of bullet wounds, are of immeasurable
efficacy

• police reports are given superior probative value in actions for reckless
imprudence resulting in homicide or physical injuries as well, tort actions,
as well as actions arising from quasi-delict

• in every inquest proceeding conducted by inquest prosecutors, police

investigation report is a must, and such police investigation report is
usually embodied in the prosecutors’ written referral report and
endorsement to the Office of the City Prosecutor

• a medical report issued by an examining physician is a material piece of

evidence of high probative value for cases involving death, physical
injuries, rape, vehicular accidents, seduction, forcible abduction, and
abortion

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

• an inquest prosecutor may refuse to entertain a criminal complaint for a

charge of physical injuries or any crime against persons for lack of a
medical certificate

• an autopsy report may help in finding whether the victim had died only
recently or after lapse of considerable period of time by the existence of
rigor mortis

• an autopsy report may also be used to determine which part of the body
of the deceased had sustained fatal wounds, bone fractures, the weapons
used and even the relative position of the accused in relation to the
deceased at the time the wounds were inflicted

Procedure in qualifying an expert witness in case the adverse counsel

would not admit the competency of the examining physician to testify
as an expert witness

Direct testimony of a physician can be considered evidence to back up the

court’s discretion to consider a physician’s qualification to testify as a medico-
legal expert, even if the defense lawyer would object or would conduct a
grueling cross-examination.

Some of the questions which may be asked by the counsel for the
purpose of qualifying him as a medico-legal expert are:
• Is this your first time to appear and testify in court?
• Did you issue an autopsy report after examining the cadaver of the
decease?
• Did you prepare this document titled “Report of Autopsy Examination?”

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

• Where did you take your medical studies?

• After graduating from ________, did you go to practice at once?
• In what hospital are you assigned now, or are you a government
physician?
• During your medical studies and practice, were you taught about the
different wounds that are inflicted on the human body?
• Can you distinguish a bullet wound from a lacerated wound or stab
wound, or incised or punctured wound?
• During your medical studies and practice, have you been assigned in a
laboratory where you were taught how to open a body of a dead person?
• How many dead bodies have you opened up and examined?

When to prepare a demand letter

• after assessing the sufficiency of the material evidence gathered to start a

court litigation and after conducting an extensive interview of you client
and witnesses, and there exists a valid cause of action, it is now time to
prepare a letter of demand
• as an advocate of the law, it still the lawyer’s task to prevent expensive
litigation and explore the possibility of an out of court settlement
• if all the hopes for an amicable settlement are drained, it becomes the
self-imposed task of the lawyer to protect the interest of the client at all
cost up to its termination as a concomitant condition of your contract of
employment
• in any case, the law has devised an expedient scheme of maintaining
goodwill and cessation of hostilities between parties through the
mandatory process of pre-trial conference under Rule 48 of the 1997

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Legal  Counseling    |    Group  4  
Christine  H.  Fresnoza   Katrina  L.  Lozano   Francis  Angelo  T.  Valenton  
Jeffrey  C.  Golod   Kevin  G.  Perez   Justine  Blanche  A.  Vera  Cruz  

Rules of Procedure – which is available in a civil case, and at any stage

during the pendency of the case

Factors that influence negotiation:

1. fear of litigation by potential litigants
2. fear of incurring unnecessary expense of litigation
3. fear of suffering mental torture, anxiety, social humiliation,
character assassination and family ruin
4. desire on the part of the lawyers to rake fat incentives without
undergoing tedious court hearings
5. psychological pressure induced by court warnings and active
participation

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