CUSTODIAL INVESTIGATIONS

(1) The rights of an accused person under in-custody investigation

are expressly enumerated in Sec. 12, Art. III of the Constitution,
viz:
(a)Any person under investigation for the commission of an
offense shall have the right to be informed of his rights 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;
(b)No torture, force, violence, intimidation or any other means
which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms
of detention are prohibited;
(c)Any confession or admission in violation of this or Sec. 17 (SelfIncrimination Clause) hereof shall be inadmissible in evidence
against him;
(d)The law shall provide for penal and civil sanctions for violation
of this section as well as compensation to aid rehabilitation of
victims of torture or similar practice, and their families.
(2) Under RA 7834, the following are the rights of persons
arrested, detained or under custodial investigation:
(a)Any person arrested, detained or under custodial investigation
shall at all times be assisted by counsel;
(b)Any public officer or employee, or anyone acting under his
order or in 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 right 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;
(c)The custodial investigation report shall be reduced to writing by
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;
(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
latters absence, upon a valid waiver, and in the presence of any
of the parents, older 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;
(e)Any waiver by person arrested or detained under the provisions
of Art. 125 of the Revised Penal Code or under custodial
investigation, shall be in writing signed by such person in the
presence of his counsel; otherwise such waiver shall be null and
void and of no effect;
(f)Any person arrested or detained or under custodial
investigation shall be allowed visits by his or conferences with any
member of his immediate family, or any medical doctor or priest
or religious minister chosen by him or by his counsel, or by any
national NGO duly accredited by the Office of the President. The
persons immediate family shall include his or her spouse,
fianc or fiance, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece and guardian or ward.
(3) Three rights are made available by Sec. 12(1):
(a)The right to remain silent Under the right against selfincrimination in Sec. 17, only an accused has the absolute right to
remain silent. A person who is not an accused may assume the
stance of silence only when asked an incriminatory question.
Under Sec. 12, however, a person under investigation has the
right to refuse to answer any question. His silence, moreover,
may not be used against him (People vs. Alegre and Gordoncillo,
94 SCRA 109);
(b)The right to counsel Example of those who are not impartial
counsel are (1) Special counsel, private or public prosecutor,
counsel of the police, or a municipal attorney whose interest is

adverse to that of the accused; (2) a mayor, unless the accused

approaches him as counselor or adviser; (3) a barangay captain;
(4) any other whose interest may be adverse to that of the
accused (People vs. Tomaquin, GR 133188, July 23, 2004);
(c)The right to be informed o his rights the right guaranteed
here is more than what is shown in television shows where the
police routinely reads out the rights from a note card; he must
also explain their effects in practical terms (People vs. Rojas, 147
SCRA 169). Short of this, there is a denial of the right, as it cannot
then truly be said that the person has been informed of his rights
(People vs. Nicandro, 141 SCRA 289).
(4) Custodial investigation involves any questioning initiated by
law enforcement officers after a person has been taken into
custody otherwise deprived of his freedom of action in any
significant way. The right to custodial investigation begins only
when the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect,
the suspect has been taken into police custody, the police carry
out a process of interrogations that lends itself to eliciting
incriminating statements (Escobedo vs. Illinois, 378 US 478;
People vs. Marra, 236 SCRA 565). It should be noted however,
however, that although the scope of the constitutional right is
limited to the situation in Escobedo and Marra, RA 7438 has
extended the guarantee to situations in which an individual has
not been formally arrested but has merely been invited for
questioning (People vs. Dumantay, GR 130612, May 11, 1999;
People vs. Principe, GR 135862, May 2, 2002).

Custodial investigation involves any questioning by law

enforcement people after a person is taken into custody or
deprived of his freedom in any significant manner. That includes
"inviting" a person to be investigated in connection of a crime of
which he's suspect and without prejudice to the "inviting" officer
for any violation of law. If a person is taken into custody and the
interrogation/questioning tends to elicit incriminating statements,
RA 7438 becomes operative (People vs. Tan, GR 117321, February
11, 1998.) Application of actual force or restraint isn't necessary;
intent to arrest is sufficient as well as the intent of the
detainee/arrested person to submit while thinking that submission
is necessary. It will also apply if the "invitation" is given by the
military and the designated interrogation site is a military outpost
(Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)
Once a person has been taken into police custody the rules of RA
7438 are to be applied. The rights of a person under custodial
investigation are the following:
1.) To be assisted by counsel (and you can demand it!)
2.) To be informed by the arresting officer, in a language he can
understand, of his right to remain silent and to counsel (and if he
can't afford one, he'll be provided one)
3.) The custodial investigation report will be null and void if it
hasn't been read and explained to him by counsel before he
signed (or thumbmarked if he's illiterate) it
4.) Extrajudicial confessions must be put in writing and must be
signed by him in the presence of counsel or, if there's a valid

waiver, any one of his parents, older siblings, spouse, municipal

mayor, municipal judge, district school supervisor or a priest or
religious minister chosen by him
5.) The waiver of a person under custodial investigation or
detained under Art. 125 of the Revised Penal Code (delay in
delivering detained persons to the proper judicial authority) must
be put in writing and signed by the detainee in the presence of
counsel or it will be null and void
6.) To be visited by, or have conferences with, members of his
immediate family, counsel, doctor, priest or religious minister or
any national NGO duly accredited by the CHR or international
NGO duly accredited by the office of the President
The immediate family includes the following: spouse, parents,
children, siblings, grandparents, grandchildren, uncles, aunts,
nephews, nieces, guardians, wards and girlfriends and boyfriends.
If counsel is absent, a custodial investigation can't proceed and
the detainee must be treated in accordance with Art. 125 of the
Revised Penal Code.
Penalties
If the arresting officer fails to inform the detainee or arrested
person of his rights, he will be sentenced to 8 to 10 years'
imprisonment and/or a fine of Php6,000. And if he was previously
convicted for a similar offense, he gets perpetual absolute
disqualification as well.
The same penalty will also apply if the detainee or arrested
person can't afford counsel's services and the arresting
officers/authorities don't provide counsel.
Obstructing counsel, immediate family members, doctors, priests
or religious ministers from visiting or conferring with the detainee
at any time of the day (or night in urgent cases, like when the
detainee needs to have the sacrament of anointing the sick
administered to him) will be penalized by 4 to 6 years'
imprisonment and a fine of Php4,000.

Republic Act No. 7438

April 27, 1992

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED,

DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS
THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled::
Section 1. Statement of Policy. It is the policy of the Senate to
value the dignity of every human being and guarantee full respect
for human rights.
Section 2. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers.
(a) Any person arrested detained or under custodial investigation
shall at all times be assisted by counsel.
(b) 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.lawphi1
(c) 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.
(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.
(e) 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.
(f) 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 nongovernmental 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,

fianc or fiance, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and guardian or ward.
As used in this Act, "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.
Section 3. Assisting Counsel. Assisting counsel is any lawyer,
except those directly affected by the case, those charged with
conducting preliminary investigation or those charged with the
prosecution of crimes.
The assisting counsel other than the government lawyers shall be
entitled to the following fees;
(a) The amount of One hundred fifty pesos (P150.00) if the
suspected person is chargeable with light felonies;lawphi1alf
(b) The amount of Two hundred fifty pesos (P250.00) if the
suspected person is chargeable with less grave or grave felonies;
(c) The amount of Three hundred fifty pesos (P350.00) if the
suspected person is chargeable with a capital offense.
The fee for the assisting counsel shall be paid by the city or
municipality where the custodial investigation is conducted,
provided that if the municipality of city cannot pay such fee, the
province comprising such municipality or city shall pay the fee:
Provided, That the Municipal or City Treasurer must certify that no
funds are available to pay the fees of assisting counsel before the
province pays said fees.
In the absence of any lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Article
125 of the Revised Penal Code.
Section 4. Penalty Clause. (a) Any arresting public officer or
employee, or any investigating officer, who fails to inform any

person arrested, detained or under custodial investigation of his

right to remain silent and to have competent and independent
counsel preferably of his own choice, shall suffer a fine of Six
thousand pesos (P6,000.00) or a penalty of imprisonment of not
less than eight (8) years but not more than ten (10) years, or
both. The penalty of perpetual absolute disqualification shall also
be imposed upon the investigating officer who has been
previously convicted of a similar offense.
The same penalties shall be imposed upon a public officer or
employee, or anyone acting upon orders of such investigating
officer or in his place, who fails to provide a competent and
independent counsel to a person arrested, detained or under
custodial investigation for the commission of an offense if the
latter cannot afford the services of his own counsel.
(b) Any person who obstructs, prevents or prohibits any lawyer,
any member of the immediate family of a person arrested,
detained or under custodial investigation, or any medical doctor
or priest or religious minister chosen by him or by any member of
his immediate family or by his counsel, from visiting and
conferring privately with him, or from examining and treating him,
or from ministering to his spiritual needs, at any hour of the day
or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6)
years, and a fine of four thousand pesos (P4,000.00).lawphi1
The provisions of the above Section notwithstanding, any security
officer with custodial responsibility over any detainee or prisoner
may undertake such reasonable measures as may be necessary
to secure his safety and prevent his escape.
Section 5. Repealing Clause. Republic Act No. No. 857, as
amended, is hereby repealed. Other laws, presidential decrees,
executive orders or rules and regulations, or parts thereof
inconsistent with the provisions of this Act are repealed or
modified accordingly.
Section 6. Effectivity. This Act shall take effect fifteen (15) days
following its publication in the Official Gazette or in any daily
newspapers of general circulation in the Philippines.

Approved: April 27, 1992.