• Rules on custodial investigation


    Persida Acosta

    Dear PAO,
    My officemate was invited by police officers to ask about his involvement in a mauling incident. Wanting to clear his name, he went with the police officers. At the police station, my officemate wanted to call members of his family so that they could get a lawyer for him. The police officers, however, said they will provide him with one but the investigation proceeded even before the lawyer arrived. May I know if what happened to my officemate was in accord with the prescribed procedure?

    Dear Konan,
    It appears from your narration that your officemate was investigated by police officers as a suspect given that he was invited on account of his involvement in a mauling incident. The fact that he was provided with a lawyer is further proof of this inference. If this is the case, the investigation that took place inside the police station is referred to as custodial investigation. By custodial interrogation, 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. (People vs. Basay; G.R. No. 86941, March 3, 1993; ponente, former Chief Justice Hilario Davide Jr.)

    Because of the inherently coercive atmosphere of custodial investigation, our Constitution provides safeguards to ensure the rights of the person under investigation. These rights are enshrined in Article III, Section 12 of our Constitution, which states in part that “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.” This provision contains a bundle of rights that includes: 1) right to remain silent, 2) right to counsel and 3) right to be informed of such rights.

    As to the right to counsel, the Constitution guarantees the person under investigation the right to not just any counsel, but a competent and independent one, preferably of his own choice. In one case, our Supreme Court interpreted competent and independent to mean that the lawyer must be “willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely giving a routine, peremptory and meaningless recital of the individual’s constitutional rights.” (People vs. Rapeza; G.R. No. 169431; April 3, 2007; ponente, former Associate Justice Dante Tinga). If, however, the person cannot afford to hire his own counsel, the police officers are duty- bound to provide him with one.

    Moreover, “settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel.” This means that the “competent or independent lawyer so engaged should be present from the beginning to end, that is, at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.” (Id.)

    Applied to the case of your officemate, it is not clear if he was informed of his rights to remain silent and to counsel, preferably of his own choice, and if he cannot secure the services of a counsel, then the police will provide him with one. If this is not done, then the police did not follow the proper procedure. Further, it would appear that the police officers violated the right of your officemate to choose his own counsel when they gave him a counsel even though he manifested his intention to secure one for himself. Finally, the continuation of the interview or investigation despite the fact that the counsel they provided has not yet arrived also constituted a violation of the rules on custodial investigation.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


    Please follow our commenting guidelines.

    Comments are closed.