Custodial Investigation (RA 7438)

This is different from preliminary investigation but it serves the same purpose: to protect the rights of a detained person.

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 the assisting counsel is a private practitioner, he is entitled to the following amounts for his services in the custodial
investigation:
1.) Php150 if the crime in question is a light felony
2.) Php250 if it's a grave or less grave felony
3.) Php350 if it's a capital offense

This will be paid by the city or municipal government where the custodial investigation is performed and payable by the
province in question if the city/municipality can't pay -and the municipal/city treasurer must certify that there is no money
first.

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.
A person under a normal audit investigation is not considered to be under custodial investigation since a COA audit
examiner isn't considered an arresting officer under RA 7438 (Navallo vs. Sandiganbayan, 234 SCRA 175.)

Rights of a Person under Custodial Investigation

If ever youre arrested, here are a couple of things to keep in mind:

Enshrined under Section 12, Article III of the 1987 Constitution are the following rights:

Section 12. (1) 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.

(2) No torture, force, violence, threat, 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.

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

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their families.

In the case of Morales, Jr. vs. Enrile, et al., the Supreme Court laid down the procedure to be followed in custodial
investigations, to wit:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel,
and that any statement he might make could be used against him. The person arrested shall have the right to communicate
with his lawyer, a relative, or anyone he chooses by the most expedient means _ by telephone if possible _ or by letter or
messenger. It shall be the duty of the arresting officer to see to it that this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed
by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

In addition, in the case of People vs Marra, et.al., the Supreme Court defined the meaning of custodial investigation, It held
that:

Custodial investigation involves any 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. It is only after the investigation ceases to be a
general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the
police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to
operate.

Also, in People vs Camat, et.al., the Court held further that:

As interpreted in the jurisdiction of their origin, these rights begin to be available where the investigation is no longer a
general inquiry into an unsolved crime but has began to focus on a particular suspect, the suspect has been taken into police
custody, and the police carry out a process of interrogation that lends itself to eliciting incriminating statements.