Police Custodial Investigation 101

POLICE CUSTODIAL INVESTIGATION 101: KNOW YOUR RIGHTS
02/06/2019
By: Belinda Grace G. Gervasio
In television series or movies, police custodial investigation scenes usually

depict an arrested person, handcuffed or detained in a small holding room,
while being questioned (sometimes even tortured or threatened) by police
officers into admitting the commission of a crime.
But real-life custodial investigations in the Philippines are not confined only
to this scenario. For the “full picture,” it is helpful that you are familiar with
the answers to four essential questions:
First: What is custodial investigation?
Second: What are the rights guaranteed to a person under custodial

investigation?
Third: What are the effects of, and penalties for, violation of these
rights?
Fourth: When do these rights cease to be available?
FIRST: What is Police Custodial Investigation?
Our Supreme Court consistently defines custodial investigation as the stage

where an investigation is no longer a general inquiry into an unsolved crime
but has begun to focus on a particular suspect taken into custody by the police
or other law enforcement agents who carry out a process of interrogation that
lends itself to elicit incriminating statements. It involves questioning initiated
by law enforcement officers after a person has been taken into custody or
deprived of freedom of action in any significant way.
However, Republic Act No. 7438, or the Act Defining Certain Rights of

Person Arrested, Detained or Under Custodial Investigation, has expanded the
definition of custodial investigation. Specifically, the law provides that said
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.
Given this, it is incorrect to conclude that custodial investigation is always the
consequence of an arrest. Someone can be considered to be under custodial
investigation when invited for questioning by law enforcement officers, even
though the person has not been formally arrested.
SECOND: What are the Rights Guaranteed to a Person under Custodial

Investigation?
After knowing what’s custodial investigation, the next crucial matter to

discuss is the rights of persons subjected thereto.
1. Miranda Rights
Article III, Section 12 (1) of the Constitutionprovides that any person under
investigation for the commission of an offense is guaranteed the following
rights:
a. The right to remain silent – A person under custodial investigation has

the right to refuse answering any question. If he indeed refuses, this may not
be used against him.
b. The right to competent and independent counsel, preferably of his own
choice. If the person cannot afford services of counsel, he must be
provided with one – In People v. Rapeza (G.R. No. 169431), the Supreme
Court held that the purpose of providing counsel to a person under custodial
investigation is to curb the police-state practice of extracting a confession that
leads suspects to make self-incriminating statements. In order to comply with
the constitutional mandate, there should be meaningful communication to, and
understanding of rights by the suspect, as opposed to a routine, peremptory
and meaningless recital thereof.
Not only does a person under custodial investigation have the right to counsel,
but the provision states that said counsel must be an independent and
competent one, preferably of his own choice. Jurisprudence explains that the
lawyer called to be present during the investigation should be as far as
reasonably possible the choice of the individual undergoing questioning. If
the lawyer were one furnished in the person’s behalf, he should be present and
able to advise and assist his client from the time the latter answers the first
question asked by the investigating officer until the signing of the
extrajudicial confession, if any. The lawyer should ascertain that the
confession is made voluntarily and the person under investigation fully
understands the nature and consequences of his confession in relation to his
constitutional rights.
c. The right to be informed of such rights – In affording this right to a

person under custodial investigation, it is not sufficient that the investigating
officer reads out the rights, or merely repeats what is stated in the
constitutional provision. The officer is duty-bound to also explain the effects
of these rights and ensure the person’s understanding thereof, in a language
known to and understood by him.
These three rights, widely known as the “Miranda rights”, were adopted by
Philippine jurisprudence and later on included in the drafting of the 1987
Philippine Constitution, following the 1966 decision of the United States
Supreme Court in the landmark case of Miranda v. Arizona (384 U.S. 436).
Here, the defendants made confessions or admissions without any evidence of
them being apprised of their constitutional rights during the interrogation
process. The US Supreme Court held that no statements stemming from
questioning initiated by law enforcement officers may be used by the
prosecution, unless it demonstrates the use of procedural safeguards effective
to secure the constitutional rights of a person under custodial interrogation.
These rights may not be waived unless made in writing and in the
presence and assistance of counsel.
But note that not all types of investigatory situations are classified as
custodial investigations where these rights may be invoked.
In People v. Gamboa (G.R. No. 91374), the Supreme Court held that
subjection to paraffin test does not require that the right to have competent
and independent counsel be afforded as this is necessary only in testimonial
compulsions, not when it is the body of the accused which is proposed to be
examined. Another example would be People v. Rueras (G.R. 174471), where
the Supreme Court reiterated the view that police lineups are not part of
custodial investigation; therefore, the right to counsel cannot be invoked at
this stage.
2. Right against Torture, Force, Violence, Threat, Intimidation

Article III, Section 12 of the Constitution further provides that no torture,
violence threat, intimidation, or any other means which vitiate the freewill
shall be used against a person under investigation for the commission of an
offense. It further states that the use of secret detention places, solitary,
incommunicado or other similar forms of detention are prohibited.
3. Right to Visits and Conferences

In addition to the constitutional rights, Republic Act No. 7438 provides that a
person under custodial investigation shall be allowed visits by or conferences
with any member of his immediate family (spouse, fiancé or fiancée, parent or
child, sibling, grandparent or grandchild, aunt or uncle, niece or nephew,
guardian or ward), or by counsel, or by any national non-governmental
organization duly accredited by the Commission on Human Rights, or by any
international non-governmental organization duly accredited by the Office of
the President.
(To know more about a person’s rights during inquest proceedings, see Senior
Partner Sig Fortun’s quick guide.)
THIRD: What are the Effects of, and Sanctions for, Violation of these Rights?
Article III, Section 12(3) of the Constitutionstates that any confession or

admission in violation of the above rights shall be inadmissible in evidence.
This is called the exclusionary rule. A confession or admission should be
given voluntarily, free from any suspicious circumstances tending to cast
doubt upon the integrity thereof. Otherwise, the same cannot be used as
evidence in any proceeding against the source of confession or admission.
Confessions or admissions covered by this provision need not be explicit, as

long as they are part of evidence communicative in nature. In People v.
Jungco (G.R. No. 78531), the Supreme Court applied this rule to participation
of the accused in a re-enactment of the crime scene. In People v. Enriquez
(G.R. No. 90738), the High Court held that the marijuana cigarettes where the
accused wrote his name without the assistance of counsel is inadmissible as
evidence.
If the constitutional rights of a person under custodial investigation are

violated, there are corresponding penal and civil sanctions, as well as
compensation to and rehabilitation of victims of torture or similar practices,
and their families. These sanctions are provided for in different statutes, i.e.,
civil sanctions, in the form of damages, covered by Article 32 of the New
Civil Code, and penal sanctions covered by the penal clause of Republic Act
No. 7438, where a fine, penalty, or both, may be imposed upon an erring
officer.
FOURTH: When do these Rights Cease to be Available?
Custodial investigation does not include quasi-judicial or judicial

investigations conducted by the fiscal or the judge. Thus, in People v. Ayson
(G.R. No. 85215), Justice Andres Narvasa discussed that the rights of a person
under custodial interrogation do not apply or extend to persons under
preliminary investigation, or those already charged in court for a crime.
Having said all these, you might be thinking that custodial investigation is
probably (read: definitely) not a situation you would imagine or choose
yourself to be in.
However, preparedness is always key.

(Belinda Grace G. Gervasio joined the Firm in 2018 and assists Founding
Partner Sig Fortunin handling criminal law cases primarily defending accused
individuals. Sig’s email [email protected] while Bel may be
reached at [email protected].
Source: FORTUN, NARVASA SALAZARv

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POLICE CUSTODIAL INVESTIGATION 101: KNOW YOUR RIGHTS

In television series or movies, police custodial investigation scenes usually

First: What is custodial investigation?

Second: What are the rights guaranteed to a person under custodial

Fourth: When do these rights cease to be available?

FIRST: What is Police Custodial Investigation?

Our Supreme Court consistently defines custodial investigation as the stage

However, Republic Act No. 7438, or the Act Defining Certain Rights of

SECOND: What are the Rights Guaranteed to a Person under Custodial

After knowing what’s custodial investigation, the next crucial matter to

a. The right to remain silent – A person under custodial investigation has

c. The right to be informed of such rights – In affording this right to a

2. Right against Torture, Force, Violence, Threat, Intimidation

3. Right to Visits and Conferences

Article III, Section 12(3) of the Constitutionstates that any confession or

Confessions or admissions covered by this provision need not be explicit, as

If the constitutional rights of a person under custodial investigation are

FOURTH: When do these Rights Cease to be Available?

Custodial investigation does not include quasi-judicial or judicial

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