“. . . The competent or independent lawyer so engaged should be present from the beginning to end, i.e., 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.”(People v. Espiritu)
“Jurisprudence is clear that an accused under custodial investigation must continuously have a counsel assisting him from the very start thereof.”(People v. Rodriguez)
Note:When is it attached? - from start to finish and in between What is competent?
“…that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine, peremptory and meaningless recital of the individual's constitutional rights.”(People v. Espiritu)
Why?
“In People v. Basay, 25this Court stressed that an accused's right to be informed of the right to remain silent and
to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."(cited in People v. Espiritu)
What is independent?
He must not have adverse interest on the case of the suspect. Municipal Attorney cannot be considered an independent counsel.
In People vs. Bandula, 26 it was held that a Municipal Attorney cannot be an independent counsel as
required by the Constitution. 27 As a legal officer of the municipality, he provides legal assistance and
support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order. It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. He is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations. 28Consequently,
for being violative of Constitution, the extrajudicial confession of accused-appellant is inadmissible. (People v. Culala).
P.A.O. Lawyer is an independent counsel.
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considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that of the accused-appellant.i[11]Thus, the assistance of a PAO lawyer in the present case satisfies the constitutional requirement of a competent and independent counsel for the accused.”(People v. Bacor).
P.C. Captain and station commander of WPD is not an independent counsel.
“Moreover, Art. III, 12(1) requires that counsel assisting suspects in custodial interrogations be competent and independent. Here, accused-appellant was assisted by Atty. De los Reyes, who, though presumably competent, cannot be considered an "independent counsel" as contemplated by the law for the reason that he was station commander of the WPD at the time he assisted accused-appellant.
…xxx…xxx…xxx…
As observed in People v. Bandula, 21the independent counsel required by Art. III, 12(1) cannot be a special
counsel, public or private prosecutor, municipal attorney, or counsel of the police whose interest is admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain and Station Commander of the WPD, was part of the police force who could not be expected to have effectively and scrupulously assisted accused- appellant in the investigation, his claim to the contrary notwithstanding. To allow such a happenstance would render illusory the protection given to the suspect during custodial investigation.(People v Obrero)
Can the right to counsel (under custodial investigation) be waived? YES.
NOTE:Only the right to remain silent and to counsel can be waived. How is it waived?
“(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.” (R.A. 7438)
“Finally, Republic Act 7438 mandates that the entire confession must be in writing.” (People v. Deniega) Reason: Presumption of an uncounselled confession:
“But what renders the confession of accused-appellant inadmissible is the fact that accused-appellant was not given the Miranda warnings effectively. Under the Constitution, an uncounseled statement, such as it is called in the United States from which Art. III, 12(1) was derived, is presumed to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really needs the guiding hand of counsel.”(People v. Obrero)
Two kinds of involuntary or coerced confessions:
“There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of 12, and (2) those which are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same.”(People v Obrero) Example of a PERFUNCTURY READING OF MIRANDA RIGHTS: (People v. Obrero)
Indeed, the waiver signed by accused-appellant reads:
MGA KARAPATAN AYON SA ATING BINAGONG SALIGANG BATAS:
Ikaw, JIMMY OBRERO y CORLA, ay aking isasailalim sa pagsisiyasat sa salang Pagnanakaw na may kasamang Pagpatay, nais kong ipaalam sa iyo ang iyong mga karapatan ayon sa ating Binagong Saligang Batas:
1. Karapatan mo ang manahimik at huwag sagutin ang mga itatanong ko sa iyo;
2. Karapatan mo ang kumuha ng isang abogado na iyong sariling pili na maaaring makatulong sa iyo sa imbistigasyon na ito at kung hindi ka makakakuha ng iyong abogado ay bibigyan ka namin ng isa na walang bayad para makatulong sa iyo;
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3. Karapatan mo rin na malaman na ang lahat ng iyong sasabihin dito sa iyong salaysay ay maaaring gamiting katibayan o ebidensya laban o pabor sa iyo o sa kanino mang tao sa alinmang hukuman dito sa Pilipinas.
Ngayon na naipaalam ko na sa iyo ang iyong mga karapatan, nais mo pa bang magbigay ng iyong malaya at kusang loob na salaysay?
SAGOT : (ni Jimmy Obrero y Corla) Opo.
TANONG: Kung ganoon ay sabihin mo ulit ang iyong pangalan at lagdaan mo ito sa ibabaw ng iyong pangalan na ipipirma o imamakinilya ko?
(Sgd.) JIMMY OBRERO y CORLA
There was thus only a perfunctory reading of the Miranda rights to accused-appellant without any effort to find out from him whether he wanted to have counsel and, if so, whether he had his own counsel or he wanted the police to appoint one for him. This kind of giving of warnings, in several decisions 16of this Court, has been found to be
merely ceremonial and inadequate to transmit meaningful information to the suspect. Especially in this case, care should have been scrupulously observed by the police investigator that accused-appellant was specifically asked these questions considering that he only finished the fourth grade of the elementary school.
VI. REQUISITES OF VALID CONFESSION
REQUISITES FOR AN EXTRAJUDICIAL CONFESSION TO BE ADMISSIBLE: 1. The confession must be voluntary
2. It must be made with the assistance of a competent and independent counsel preferably of the confessant’s choice
3. It must be express 4. It must be in writing When is confession voluntary?
“. . . bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient in view of the standing rule enunciated in the cases of People v. Mada-I Santalani; 52
People v. Balane; 53and People v. Villanueva, 54that where the defendants did not present evidence of
compulsion, or dures nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these were considered by this Court as factors indicating voluntariness.” (People v. Base)
RECIEPT OF CUSTODY is the same as an extrajudicial confession outlawed in the constitution: “The Court agrees with counsel for the accused-appellant that the Receipt for Custody (Exh. B) is
inadmissible in evidence, as it was signed by the accused during custodial investigation without the assistance of counsel of his choice and without having been first informed of his constitutional right to silence and to counsel. The said Receipt is a declaration against interest and a tacit admission of the crime charged, since mere unexplained possession of prohibited drugs is punished by law. The Receipt is in the same category as extrajudicial confessions outlawed by the Constitution.” (People v. Turla)
VII. Effect of non- compliance
“xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.”
“It is not material that appellant's confession came in verbal form. Section 20, Article IV of the 1973 Constitution does not distinguish between verbal and non-verbal confessions. So long as they are uncounselled, they are inadmissible in evidence. What is sought to be avoided is "the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him."
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The statements made by appellant pertaining to the stolen pieces of jewelry are inadmissible in evidence against him because these were taken in violation of his rights to counsel and to remain silent. Nor can the recovered pieces of jewelry be used as evidence against the appellant. They are fruits of the poisonous tree.” (Pp v. Bonola)
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Under the present laws, a confession to be admissible must be:26
1.) express and categorical;27
2.) given voluntarily,28and intelligently where the accused realizes the legal significance of his act;29
3.) with assistance of competent and independent counsel;30
4.) in writing; and in the language known to and understood by the confessant;31and
5) signed, or if the confessant does not know how to read and write thumbmarked by him.32
In this case, the absence of the third requisite above makes the confession inadmissible. The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting
confession even by the slightest coercion33as would lead the accused to admit something false.34What is sought
to be avoided is the "evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him.35These
constitutional guarantees have been made available to protect him from the inherently coercive psychological, if not physical atmosphere of such investigation.36In any case, said extrajudicial confession of one accused may
not be utilized against a co-accused unless they are repeated in open court or when there is an opportunity to cross-examine the other on his extrajudicial statements. It is considered hearsay as against said accused under the rule on res enter alios acta rule, which ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. (Pp v. Olivares, Jr.)
“To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation.
In providing that during the taking of an extrajudicial confession the accused's parents, older brothers and sisters, his spouse, the municipal mayor, municipal judge, district school
supervisor, or priest or minister of the gospel as chosen by the accused may be present, RA 7438 does not propose that they appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: (a) counsel of the accused must be absent, and, (b) a valid waiver must be executed. RA 7438 does not therefore unconditionally and unreservedly eliminate the necessity of counsel but underscores its importance by requiring that a substitution of counsel with the above-mentioned persons be made with caution and with the essential safeguards.
Hence, in the absence of such valid waiver, the Parish Priest of Santol, the Municipal Mayor, the relatives of the accused, the Chief of Police and other police officers of the municipality could not stand in lieu of counsel's presence. The apparent consent of the two (2) accused in continuing with the investigation was of no moment as a waiver to be effective must be made in writing and with the
assistance of counsel.1[9]Consequently, any admission obtained from the two (2) accused emanating from such uncounselled interrogation would be inadmissible in evidence in any proceeding.
Securing the assistance of the PAO lawyer five (5) to eight (8) days later does not remedy this omission either. Although there was a showing that the PAO lawyer made a thorough explanation of the rights of the accused, enlightened them on the possible repercussions of their admissions, and even gave them time to deliberate upon them, this aid and valuable advice given by counsel still came several days too late. It could have no palliative effect. It could not cure the absence of counsel during the custodial investigation when the
extrajudicial statements were being taken. (Pp v. Ordono)
VIII. RIGHT TO BAIL
Article III, Section 13 of the Constitution:All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
A. Bail, defined
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Rule 114, SECTION 1. Bail defined. – Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.
B. Who can avail?
“At this juncture, there is a need to reiterate the basic principle that the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed.” (Cortes v. Catral)
C. When a matter of right?
Rule 114, SEC. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a)before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment.
Aswat v. Galido G. R. No. 88555, Nov. 21, 1991