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M. Rights of persons under custodial investigation

1. Availability

a. CONCEPT

Custodial 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, without prejudice to the liability of the “inviting” officer for any violation of law. (Last paragraph, Section 2, R.A. 7438)

NB: The rights are available are available from the moment a person is placed under custodial investigation, regardless if he was “invited” by the authorities.

2. Requisites

a. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION

The following are the rights of persons arrested, detained, or under custodial investigation and the coresponding duties of public officers:

1) ASSISTED BY COUNSEL: Any person arrested, detained, or under custodial investigation shall at all times be assisted by counsel. If the person cannot afford the services of counsel, he must be provided with one.  (Section 2[a], R.A. 7438 cf. Section 12[1], Article III, 1987 Constitution)

2) MIRANDA RIGHTS: Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. (Section 2[b], Ibid. cf. Section 12[1], Article III, 1987 Constitution)

3) CUSTODIAL INVESTIGATION REPORT: The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. (Section 2[c], Ibid.)

4) EXTRAJUDICIAL CONFESSION: 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. (Section 2[d], Ibid.; Section 12[3], Ibid.)

5) WAIVER OF RIGHTS: Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (Section 2[e], Ibid.; Section 12[1], Article III, 1987 Constitution)

6) VISITS OR CONFERENCES: Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person’s “immediate family” shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. (Section 2[f], Ibid.)

7) NO TORTURE, VIOLENCE, THREAT, ETC.: No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Any confession or admission obtained in violation hereof shall be inadmissible in evidence against him. (Section 12[2], Article III, Ibid. cf. Section 12[3], Article III, 1987 Constitution)

8) NO SECRET DETENTION PLACES, ETC.: Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (Ibid.)

3. Waiver

GENERAL RULE: The right to remain silent and to counsel cannot be waived. (Section 12[1], Article III, 1987 Constitution)

EXCEPTION: …except in writing and in the presence of counsel. (Section 12[1], Article III, 1987 Constitution)

Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (Section 2[e], Ibid.; Section 12[1], Article III, 1987 Constitution)

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