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Once admitted, the confession must inspire credibility or be one which the normal experience of mankind can accept as being within the realm of probability.

A confession meeting all the foregoing requisites constitutes evidence of a high order since it is supported by the strong presumption that no person of normal mind will knowingly, freely and deliberately confess that he is the perpetrator of a crime unless prompted by truth and conscience. When all these requirements are met and the confession is admitted in evidence, the burden of proof that it was obtained by undue pressure, threat or intimidation rests upon the

accused. (People v. Fabro, 277 SCRA 19, Aug. 11, 1997 [Panganiban])

2. Numerous decisions of this Court rule that for an extrajudicial confession to be admissible, it must be: 1) voluntary; 2)

made with the assistance of competent and independent counsel; 3) express; and 4) in writing.

The mantle of protection afforded by the above-quoted constitutional provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a

suspect in the commission of the offense although not yet in custody .

The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere running through menacing police interrogation procedures where the potentiality for compulsion, physical or psychological is forcefully apparent.

However, the rule is not intended as a deterrent to the accused from confessing guilt if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. (People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1st _{Div. [Ynares-Santiago])}

171. Is the choice of a lawyer by a person under custodial investigation who cannot afford the services of a counsel exclusive as to preclude other equally competent and independent attorneys from handling his defense?

Held: It must be remembered in this regard that while the right to counsel is immutable, the option to secure the services of counsel

de parte is not absolute . Indeed –

The phrase “competent and independent” and “preferably of his own choice” were explicit details which were added upon the persistence of human rights lawyers in the 1986 Constitutional Commission who pointed out cases where, during the martial law period, the lawyers made available to the detainee would be one appointed by the military and therefore beholden to the military.

(Citing I Record of the Constitutional Commission 731-734; I Bernas, The Constitution of the Republic of the Philippines, 1987 1st _{ed., p. 347)}

X x x x x x x x x

Withal, the word “preferably” under Section 12(1), Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter.

While the initial choice in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former’s appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer.

Verily, to be an effective counsel “[a] lawyer need not challenge all the questions being propounded to his client. The presence of a

lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false (People v. Layuso, 175 SCRA 47 [1989]). The counsel, however, should never prevent an accused from freely and voluntarily

telling the truth.”

(People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1st _Div. [Ynares-Santiago])

172. Should courts be allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule?

Held: The exclusionary rule sprang from a recognition that

police interrogatory procedures lay fertile grounds for coercion, physical and psychological, of the suspect to admit responsibility for the crime under investigation. It was not intended as a deterrent to the accused from confessing guilt, if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. Law enforcement agencies are required to effectively communicate the rights of a person under investigation and to insure that it is fully understood. Any measure short of this requirement is considered a denial of such right. Courts are not

allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule. Any information or admission given by a person while in custody which may appear harmless or innocuous at the time without the competent assistance of an independent counsel should be struck down as inadmissible . It has been held, however, that an admission made to news reporters or to a confidant of the accused is not covered by the exclusionary rule.

The admission allegedly made by the appellant is not in the form of a written extra-judicial confession; the admission was allegedly made to the arresting officer during an “informal talk” at the police station after his arrest as a prime suspect in the rape and killing of x x x. The arresting policeman testified that the appellant admitted that he was with the victim on the evening of January 12, 1994, the probable time of the commission of the crime and that he carried her on his shoulder but that he was too drunk to remember what subsequently happened. The arresting policeman admitted that he did not inform the appellant of his constitutional rights to remain silent and to counsel. We note that the alleged admission is incriminating because it places the accused in the company of the victim at the time the crime was probably committed.

The exclusionary rule applies.

The accused was under arrest for the rape and killing of x x x and any statement allegedly made by him pertaining to his possible complicity in the crime without prior notification of his constitutional rights is inadmissible in evidence. The policeman’s

apparent attempt to circumvent the rule by insisting that the admission was made during an “informal talk” prior to custodial investigation prior is not tenable. The appellant was not invited to the police station as part of a general inquiry for any possible lead to the

perpetrators of the crime under investigation. At the time the alleged admission was made the appellant was in custody and had been arrested as the prime suspect in the rape and killing of x x x. The

exclusionary rule presumes that the alleged admission was coerced, the very evil the rule stands to avoid. Supportive of such presumption is the absence of a written extra-judicial confession to that effect and the appellant’s denial in court of the alleged oral admission. The

alleged admission should be struck down as inadmissible.

(People v. Bravo, 318 SCRA 812, Nov. 22, 1999, En Banc [Gonzaga-Reyes])

173. Explain the procedure for out-of-court identification of suspects and the test to determine the admissibility of such identification.

Held: 1. In People v. Teehankee, Jr. (249 SCRA 54, October 6,

1995, the Court x x x explained the procedure for out-of-court identification and the test to determine the admissibility of such identification. It listed the following ways of identifying the suspects during custodial investigation: show-up, mug shots and line-

ups. The Court there ruled:

“x x x. Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the

suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done

thru line ups where a witness identifies the suspect from a group

of persons lined up for the purpose. Since corruption of out-of-

court identification contaminates the integrity of in court

identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of- court identification of suspects, courts have adopted the TOTALITY OF

CIRCUMSTANCES TEST where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the

time of the crime; (2) the witness’ degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.” (Ibid., p. 95) (People v. Timon, 281

SCRA 577, Nov. 12, 1997 [Panganiban])