WAIVER

Guidelines for Arresting/Investigating

 Constitutional Basis Officers
[People v. Mahinay, G.R. No. 122485, 1
Art. III, Sec. 12, par. 1
February 1999]
(1) Any person under investigation for
a. The person arrested, detained, invited or
the commission of an offense shall
under custodial investigation must be
have the right to be informed of his informed in a language known to and
right to remain silent and to have a understood by him of the reason for the
competent and independent arrest and he must be shown the warrant of
counsel preferably of his own arrest, if any. Every other warning,
choice. If the person cannot afford information or communication must be in a
the services of counsel, he must be language known to and understood by said
provided with one. These rights person.
cannot be waived in except in b. He must be warned that he has a right to
remain silent and that any statement he
writing and in the presence of
makes may be used as evidence against him.
counsel.
c. He must be informed that he has the right to
be assisted at all times and have the presence
 Doctrine of uncounseled waiver of the right of an independent and competent lawyer,
to counsel and to remain silent is not to be preferably of his own choice.
given any legal effect. d. He must be informed that if he has no lawyer
or cannot afford the services of a lawyer, one
 Its requirements and restrictions therein will be provided for him; and that a lawyer
have no retroactive effect and do not reach may also be engaged by any person in his
waivers made prior to the date of behalf, or may be appointed by the Court
upon petition of the person arrested or one
promulgation of Morales [Filoteo v.
acting in his behalf.
Sandiganbayan, 263 SCRA 222].
e. That whether or not the person arrested has
a lawyer, he must be informed that no
 Burden of proof rests on the prosecution custodial investigation in any form shall be
- its presumption that the official duty conducted except in the presence of his
has been regularly performed cannot counsel or after a valid waiver has been
prevail over the presumption of made.
innocence f. The person arrested must be informed that,
at any time, he has the right to communicate
or confer by the most expedient means, e.g.,
Examination of extrajudicial confession
by telephone, radio, letter or messenger, with
shows it is indeed replete with details that his lawyer (either retained or appointed), any
according to the trial court bespeak the guilt of member of his immediate family, or any
the accused-appellant as no one but the actual medical doctor, priest or minister chosen by
perpetrator of the offense could have described him or by anyone of his immediate family or
with such particularity. by his counsel, or be visited by/confer with
duly accredited national or international non-
government organization. It shall be the
responsibility of the officer to ensure that this
is accomplished.
g. He must be informed that he has the right to
waive any of said rights provided it is made
voluntarily, knowingly and intelligently, and
ensure that he understood the same.
h. In addition, if the person arrested waives his
 right to a lawyer, he must be informed that is
must be done in writing and in the presence
of counsel, otherwise, he must be warned People v. Quijano
that the waiver is void even if he insists on his G.R. No. 84361, 31 May 1991
waiver and chooses to speak.
i. The person arrested must be informed that FACTS: On September 16, 1986, at about 11:00 in the evening at Sitio
he may indicate in any manner at any time or Tal-ot, Barangay Valencia, Municipality of Carcar, Province of Cebu,
Philippines, the accused, conspiring, confederating and mutually helping
stage of the process that he does not wish to one another, armed with deadly weapons, with treachery and evident
be questioned with a warning that once he premeditation, did then and willfully, unlawfully and feloniously attack,
makes such indication the police may not assault and stab, with intent to kill, one Abundio Baring on the different
interrogate him if the same had not yet parts of his body, thereby causing his instantaneous death; thereafter,
the accused cut off the victim’s head and take and carry away the head
commenced, or the interrogation must cease with them.
if it has already begun.
j. The person arrested must be informed that Quijano and his co-accused were turned over to the Carcar Police
his initial waiver of his right to remain silent, Station where they were formally investigated. Layog and Lapinid
confessed their guilt and participation in the crime. Layog was executed
the right to counsel or any of his rights does on September 22, 1986 with the assistance of Atty. Flavio Vargas, while
not bar him from invoking it at any time Lapid was executed on September 24, 1986 with the assistance of Atty.
during the process, regardless of whether he Avelino Escubido.
may have answered some questions or
ISSUE: Whether or not a waiver was obtained.
volunteered some statements.
k. He must also be informed that any statement RULING: YES. Art. III, Sec. 12, par. 1 provides that it is not only provided
or evidence, as the case may be, obtained in that the right to the assistance of counsel, to be validly waived, must be
violation of any of the foregoing, whether made in writing but that it must also be done in the presence of counsel.

inculpatory or exculpatory, in whole or in Indubitably established and now a matter of record is the fact that
part, shall be inadmissible in evidence. appellant Lapinid was assisted by Atty. Avelino Escobido who even
signed the former's sworn declarations. It is likewise a matter of record
that before appellant Layog made his extrajudicial confession, he was
People v. Tunday first asked if he was amenable to the services of Atty. Vargas, to which
G.R. No. L-67813, 29 January 1988 query he answered affirmatively.

FACTS: Tunday was eventually acquitted for insufficient evidence, but

Lawre was found guilty despite hhis defense of alibi and his allegation
that the extrajudicial was illegally obtained.

Lawre declared in his testimony that he was subjected to manhandling

by as many as six policemen during the time he was under investigation.
He claims he was hit in the head with handcuff his private organ was
electrified, and he was forced to sign the confession which he had not
even been allowed to read.

ISSUE: Whether or not a waiver was obtained.

RULING: NO. Art. III, Sec. 12, par. 1 provides that it is not only provided
that the right to the assistance of counsel, to be validly waived, must be
made in writing but that it must also be done in the presence of counsel.

There is no physical evidence of the accused-appellant’s charges, nor

either that he complained later of the violation intimidation imposed
upon him. The allegations of third-degree methods was denied under
oath by the investigator who conducted the interrogation.

In the Galit case, we held that a confession must be made with

assistance of counsel unless the right to counsel is waived with the
assistance of counsel.

It is clear from the sworn statement that the accused-appellant was not
properly informed of his constitutional rights. Interrogation began with
the sacramental recital of such rights, but without any effort to explain
them, and ended with the mechanical question of whether he
understood the notification, followed by the usual docile “Opo” from the
suspect. There is now a long list of cases that have outlawed this
unfeeling procedure as not sufficient to satisfy the imperative requisites
laid down by the Bill of Rights for the protection of the person under
custodial investigation.