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L. Right against self-incrimination

1. Scope and coverage


1) Applies to all cases

The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding. (Rosete v. Lim, G.R. No. 136051, 08 June 2006)

The right is not to be compelled to be a witness against himself. It secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. (Ibid.)

a) Includes custodial investigation

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. (Section 12[1], Article III, 1987 Constitution)

Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (Section 12[3], Ibid.)

The right against self-incrimination applies to persons “under investigation for the commission of an offense,” i.e., “suspects” under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative. (People v. Ayson, G.R. No. 85215, 07 July 1989)

Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made “under custodial interrogation,” or “under investigation for the commission of an offense,” the statement is not protected. (Ibid.)

Case Law

1) In People v. Taylaran, a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, it was ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. (Ibid.)

b) Excludes subpoena

It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty. (Ibid.)

2) Right must be invoked

The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. (Ibid.)

a) When being asked an incriminatory question

The right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. (Ibid.)

2. Application


1) Miranda Rights

Whenever any person is “under investigation for the commission of an offense” –

1) He shall have the right to remain silent and to counsel, and to be informed of such right;

2) No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; and,

3) Any confession obtained in violation of these rights shall be inadmissible in evidence. (People v. Ayson, supra.)

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. (Ibid.)

The objective is to prohibit “incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights.” (Ibid.)

The rights above specified exist only in “custodial interrogations,” or “in-custody interrogation of accused persons.” By custodial interrogation is meant “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.”


A defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors’ office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor’s office), there is no occasion to speak of his right while under “custodial interrogation” with respect to his right to be free from torture and extrajudicial confession for the obvious reason that he is no longer under “custodial interrogation.” (Ibid.)

But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. (Ibid.)

1) Criminal cases

a) Accused has right to refuse to take the witness stand

Only an accused in a criminal case can refuse to take the witness stand. (Rosete v. Lim, supra.)

An accused “occupies a different tier of protection from an ordinary witness.” Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others –

1) To be exempt from being a witness against himself, and,

2) To testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. (People v. Ayson, supra.)

The right of the defendant in a criminal case “to be exempt from being a witness against himself” signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words – unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him – the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. (Ibid.)

2) Non-criminal cases

GENERAL RULE: The right to refuse to take the stand does not generally apply to parties in administrative or civil cases. (Ibid.)

QUALIFIED: The parties thereto can only refuse to answer if incriminating questions are propounded. Only an accused in a criminal case can refuse to take the witness stand. (Rosete v. Lim, supra.)


1) A party who is not an accused in a criminal case is allowed not to take the witness stand – in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding; and,

2) A party in a civil action which are criminal in nature. (Ibid.)

As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls. (Ibid.)

Case Law

1. In Rosete v. Lim, the case was civil it being a suit for Annulment, Specific Performance with Damages. In order for petitioners to exercise the right to refuse to take the witness stand and to give their depositions, the case must partake of the nature of a criminal proceeding. The case on hand certainly cannot be categorized as such. The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of the civil case will not give them the right to refuse to take the witness stand and to give their depositions. They are not facing criminal charges in the civil case. Like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them. Only if and when incriminating questions are thrown their way can they refuse to answer on the ground of their right against self-incrimination. (Ibid.)

3. Immunity statutes


1) Executive immunity;

2) Parliamentary immunity; and

3) Sovereign immunity in relation to public officers performing official functions.

NB: For more discussions, see: II. Basic Concepts > C. State Immunity

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