ARREST The voluntary appearance of the accused, whereby the

court acquires jurisdiction over his person, is

DEFINITION:
accomplished either by his pleading to the merits (such
 Arrest is the taking of a person into custody in as by filing a motion to quash or other pleadings
order that he may be bound to answer for the requiring the exercise of the court's jurisdiction
commission of an offense. thereover, appearing for arraignment, entering trial) or
by filing bail.
HOW EFFECTED:
On the matter of bail, since the same is intended to
 an arrest is effected by an actual restraint of the obtain the provisional liberty of the accused, as a rule the
person to be arrested or by his voluntary same cannot be posted before custody of the accused has
submission to the custody of the person making been acquired by the judicial authorities either by his
the arrest. arrest or voluntary surrender.
Application of actual force, manual touching of the WITH A WARRANT
body, physical restraint or a formal declaration of arrest
is not, required. It is enough that there be an intent on the When warrant of arrest may issue: (a) By the
part of one of the parties to arrest the other and an intent Regional Trial Court. Within ten (10) days from the
on the part of the other to submit, under the belief and filing of the complaint or information, the judge shall
impression that submission is necessary. personally evaluate the resolution of the prosecutor and
its supporting evidence. He may immediately dismiss the
WARRANTLESS ARREST case if the evidence on record clearly fails to establish
probable cause.
 Sec. 5. Arrest without warrant; when lawful. —
A peace officer or a private person may, without REQUIREMENTS IN THE ISSUANCE OF A
a warrant, arrest a person: WARRANT OF ARREST

(a) When, in his presence, the person to be The JUDGE shall:

arrested has committed, is actually committing, (1) personally evaluate the report and the supporting
or is attempting to commit an offense; documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof,
(b) When an offense has in fact just been issue a warrant of arrest; or
committed and he has personal knowledge of
facts indicating that the person to be arrested has (2) if on the basis thereof he finds no probable cause, he
committed it; and may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid
(c) When the person to be arrested is a prisoner him in arriving at a conclusion as to the existence of
who has escapes from a penal establishment or probable cause.
place where he is serving final judgment or PROBABLE CAUSE
temporarily confined while his case is pending,
or has escaped while being transferred from one DEFINITION
confinement to another.
 Probable Cause is a reasonable ground of
JURISDICTION OVER THE PERSON presumption that a matter is, or may be, well
founded, such a state of facts in the mind of the
 It has been held that where after the filing of the prosecutor as would lead a person of ordinary
complaint or information a warrant for the arrest caution and prudence to believe, or entertain an
of the accused is issued by the trial court and the honest or strong suspicion, that a thing is so.
accused either voluntarily submitted himself to
the court or was duly arrested, the court thereby The term does not mean "actual and positive cause" nor
acquires jurisdiction over the person of the does it import absolute certainty.
accused.

1
It is merely based on opinion and reasonable belief. and the documentary evidence of the parties, the
Thus, a finding of probable cause does not require an counter-affidavit of the accused and his witnesses, as
inquiry into whether there is sufficient evidence to well as the transcript of stenographic notes taken during
procure a conviction. the preliminary investigation, if any, submitted to the
court by the investigating prosecutor upon the filing of
It is enough that it is it believed that the act or omission
the Information.[52]
complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the SOLIVEN VS. MAKASIAR
prosecution in support of the charge.
 The constitutional provision does not
Probable cause for the issuance of a warrant of arrest is mandatorily require the judge to personally
the existence of such facts and circumstances that would examine the complainant and her witnesses.
lead a reasonably discreet and prudent person to believe Instead, he may opt to personally evaluate the
that an offense was committed by the person sought to report and supporting documents submitted by
be arrested. the prosecutor or he may disregard the
prosecutors report and require the submission of
This must be distinguished from the prosecutor’s finding
supporting affidavits of witnesses.
of probable cause which is for the filing of the proper
criminal information.
 The Judge does not have to personally examine
Probable cause for warrant of arrest is determined to the complainant and his witnesses. The
address the necessity of placing the accused under Prosecutor can perform the same functions as a
custody in order not to frustrate the ends of justice.42 commissioner for the taking of the evidence.
However, there should be a report and necessary
BASIS documents supporting the Fiscals bare
The need to find probable cause is dictated by the Bill of certification. All of these should be before the
Rights which protects "the right of the people to be Judge.
secure in their persons . . . against unreasonable searches  What the Constitution underscores is the
and seizures of whatever nature . . ."20 An arrest without exclusive and personal responsibility of the
a probable cause is an unreasonable seizure of a person, issuing judge to satisfy himself of the existence
and violates the privacy of persons which ought not to be of probable cause. In satisfying himself of the
intruded by the State.21 existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to
Probable cause to warrant arrest is not an opaque personally examine the complainant and his
concept in our jurisdiction. Continuing accretions of case witnesses. Following established doctrine and
law reiterate that they are facts and circumstances which procedure, he shall: (1) personally evaluate the
would lead a reasonably discreet and prudent man to report and the supporting documents submitted
believe that an offense has been committed by the person by the fiscal regarding the existence of probable
sought to be arrested. cause and, on the basis thereof, issue a warrant
JUDGE V. PROSECUTOR of arrest; or (2) if on the basis thereof he finds
no probable cause, he may disregard the fiscal's
DUTY OF JUDGE report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a
Webb v. De Leon, the judge just personally reviews the
conclusion as to the existence of probable cause.
initial determination of the investigating prosecutor
finding a probable cause to see if it is supported by PEOPLE V. INTING
substantial evidence.
First, the determination of probable cause is a function
• However, in determining the existence or non- of the Judge. It is not for the Provincial Fiscal or
existence of probable cause for the arrest of the accused, Prosecutor nor for the Election Supervisor to ascertain.
the judge should not rely solely on the said report.[51] Only the Judge and the Judge alone makes this
The judge should consider not only the report of the determination.
investigating prosecutor but also the affidavit/affidavits
2
Second, the preliminary inquiry made by a Prosecutor supporting evidence, other than the prosecutors bare
does not bind the Judge. It merely assists him to make report, upon which to legally sustain his own findings on
the determination of probable cause. the existence (or nonexistence) of probable cause to
issue an arrest order. This responsibility of determining
The Judge does not have to follow what the Prosecutor
personally and independently the existence or
presents to him. By itself, the Prosecutors certification of
nonexistence of probable cause is lodged in him by no
probable cause is ineffectual. It is the report, the
less than the most basic law of the land. Parenthetically,
affidavits the transcripts of stenographic notes (if any),
the prosecutor could ease the burden of the judge and
and all other supporting documents behind the
speed up the litigation process by forwarding to the latter
Prosecutors certification which are material in assisting
not only the information and his bare resolution finding
the Judge to make his determination.
probable cause, but also so much of the records and the
And third, Judges and Prosecutors alike should evidence on hand as to enable His Honor to make his
distinguish the preliminary inquiry which determines personal and separate judicial finding on whether to
probable cause for the issuance of a warrant of arrest issue a warrant of arrest.
from the preliminary investigation proper which
Lastly, it is not required that the complete or entire
ascertains whether the offender should be held for trial
records of the case during the preliminary investigation
or released. Even if the two inquiries are conducted in
be submitted to and examined by the judge.[26] We do
the course of one and the same proceeding, there should
not intend to unduly burden trial courts by obliging them
be no confusion about the objectives. The determination
to examine the complete records of every case all the
of probable cause for the warrant of arrest is made by the
time simply for the purpose of ordering the arrest of an
Judge. The preliminary investigation proper -- whether
accused. What is required, rather, is that the judge must
or not there is reasonable ground to believe that the
have sufficient supporting documents (such as the
accused is guilty of the offense charged and, therefore,
complaint, affidavits, counter-affidavits, sworn
whether or not he should be subjected to the expense,
statements of witnesses or transcripts of stenographic
rigors and embarrassment of trial -- is the function of the
notes, if any) upon which to make his independent
Prosecutor.
judgment or, at the very least, upon which to verify the
HO VS. PEOPLE findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on
First, as held in Inting, the determination of probable the prosecutors recommendation, as Respondent Court
cause by the prosecutor is for a purpose different from did in this case:
that which is to be made by the judge. Whether there is
reasonable ground to believe that the accused is guilty of Section 5(a) of Rule 112, grants the trial court three
the offense charged and should be held for trial is what options upon the filing of the criminal complaint or
the prosecutor passes upon. The judge, on the other information. He may:
hand, determines whether a warrant of arrest should be
a) dismiss the case if the evidence on record clearly
issued against the accused, i.e. whether there is a
failed to establish probable cause;
necessity for placing him under immediate custody in
order not to frustrate the ends of justice. Thus, even if b) issue a warrant of arrest if it finds probable cause; or
both should base their findings on one and the same
c) order the prosecutor to present additional evidence
proceeding or evidence, there should be no confusion as
within five days from notice in case of doubt on the
to their distinct objectives.
existence of probable cause.
Second, since their objectives are different, the judge
EXECUTIVE AND JUDICIAL DETERMINATION
cannot rely solely on the report of the prosecutor in
finding probable cause to justify the issuance of a In a criminal prosecution, probable cause is determined
warrant of arrest. Obviously and understandably, the at two stages.
contents of the prosecutors report will support his own
conclusion that there is reason to charge the accused of The first is at the executive level, where determination is
an offense and hold him for trial. However, the judge made by the prosecutor during the preliminary
must decide independently. Hence, he must have investigation, before the filing of the criminal
information.
3
The second is at the judicial level, undertaken by the accordance with law and the Rules of Court, as
judge before the issuance of a warrant of arrest. amended, and found probable cause for the filing
of the Information.
The executive determination of probable cause is one
made during preliminary investigation. It is a function WHEN INJUNCTION WILL NOT LIE
that properly pertains to the public prosecutor who is
It is an established doctrine that injunction will not lie to
given a broad discretion to determine whether probable
enjoin a criminal prosecution because public interest
cause exists and to charge those whom he believes to
requires that criminal acts be immediately investigated
have committed the crime as defined by law and thus
and prosecuted for the protection of society.
should be held for trial. Otherwise stated, such official
has the quasi-judicial authority to determine whether or However, it is also true that various decisions of this
not a criminal case must be filed in court. Whether or not Court have laid down exceptions to this rule, among
that function has been correctly discharged by the public which are:
prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a a. To afford adequate protection to the constitutional
case, is a matter that the trial court itself does not and rights of the accused
may not be compelled to pass upon. b. When necessary for the orderly administration of
The judicial determination of probable cause, on the justice or to avoid oppression or multiplicity of actions
other hand, is one made by the judge to ascertain c. When there is a pre-judicial question which is
whether a warrant of arrest should be issued against the subjudice
accused. The judge must satisfy himself that based on
the evidence submitted, there is necessity for placing the d. When the acts of the officer are without or in excess
accused under custody in order not to frustrate the ends of authority
of justice. If the judge finds no probable cause, the judge
e. Where the prosecution is under an invalid law,
cannot be forced to issue the arrest warrant.44 [Emphasis
ordinance or regulation
ours]
f. When double jeopardy is clearly apparent
The difference is clear: The executive determination of
probable cause concerns itself with whether there is g. Where the court has no jurisdiction over the offense
enough evidence to support an Information being filed.
The judicial determination of probable cause, on the h. Where there is a case of persecution rather than
other hand, determines whether a warrant of arrest prosecution
should be issued. i. Where the charges are manifestly false and motivated
A warrant can issue only if the judge is satisfied after an by the lust for vengeance
examination in writing and under oath of the j. When there is clearly no prima facie case against the
complainant and the witnesses, in the form of searching accused and a motion to quash on that ground has been
questions and answers, that a probable cause exists and denied
that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of k. Preliminary injunction has been issued by the
justice. Supreme Court to prevent the threatened unlawful arrest
of petitioners
BY A REGIONAL TRIAL COURT
INFERIOR COURTS
 The judge must make a personal determination
of the existence or non-existence of probable EXAMINATION OF
cause for the arrest of the accused. The duty to COMPLAINANT/APPLICANT AND WITNESS
make such determination is personal and Sec. 6. When warrant of arrest may issue.
exclusive to the issuing judge. He cannot
abdicate his duty and rely on the certification of (b) By the Municipal Trial Court. If the municipal trial
the investigating prosecutor that he had judge conducting the preliminary investigation is
conducted a preliminary investigation in satisfied after an examination in writing and under oath
4
of the complainant and his witnesses in the form of An arrest without a warrant of arrest, under Section 5
searching questions and answers, that a probable cause paragraphs (a) and (b) of Rule 113 of the Rules of Court,
exists and that there is a necessity of placing the as amended, is justified when the person arrested is
respondent under immediate custody in order not to caught in flagranti delicto, viz., in the act of committing
frustrate the ends of justice, he shall issue a warrant of an offense; or when an offense has just been committed
arrest. and the person making the arrest has personal knowledge
of the facts indicating that the person arrested has
There are three (3) conditions that must concur for the
committed it.
issuance of the warrant of arrest by the municipal judge
during a preliminary investigation. The investigating THE RATIONALE BEHIND LAWFUL ARRESTS,
judge must: WITHOUT WARRANT
1. Have examined in writing and under oath the PEOPLE VS. KAGUI MALASUGUI
complainant and his witnesses by searching
To hold that no criminal can, in any case, be arrested and
questions and answers;
searched for the evidence and tokens of his crime
2. Be satisfied that a probable cause exists; and
without a warrant, would be to leave society, to a large
3. That there is a need to place the respondent
extent, at the mercy of the shrewdest, the most expert,
under immediate custody in order not to frustrate
and the most depraved of criminals, facilitating their
the ends of justice.
escape in many instances.
NOT MANDATORY/ AUTOMATIC TO ISSUE
WARRANT OF ARREST
PERSONAL KNOWLEDGE OF FACTS
Even if the judge finds probable cause, it is not
mandatory for him to issue a warrant of arrest. He must Section 5(b), Rule 113, it will be noted, refers to arrests
further determine the necessity of placing the respondent without warrant, based on "personal knowledge of facts"
under immediate custody in order not to frustrate the acquired by the arresting officer or private person.
ends of justice.
It has been ruled that "personal knowledge of facts," in
It is improper for a municipal judge to issue a warrant of arrests without warrant must be based upon probable
arrest without any finding that it was necessary to place cause, which means an actual belief or reasonable
the accused in immediate custody to prevent frustration grounds of suspicion
of the ends of justice.
The grounds of suspicion are reasonable when, in the
WARRANTLESS ARREST absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty
RULE 113
of committing the offense, is based on actual facts, i.e.,
Sec. 5. Arrest without warrant; when lawful. — A peace supported by circumstances
officer or a private person may, without a warrant, arrest
A reasonable suspicion therefore must be founded on
a person:
probable cause, coupled with good faith on the part of
(a) When, in his presence, the person to be arrested has the peace officers making the arrest.
committed, is actually committing, or is attempting to
Jurisprudence which dictates that appellant, having
commit an offense;
voluntarily submitted to the jurisdiction of the trial court,
(b) When an offense has in fact just been committed, and is deemed to have waived his right to question the
he has personal knowledge of facts indicating that the validity of his arrest, thus curing whatever defect may
person to be arrested has committed it; and have attended his arrest.
(c) When the person to be arrested is a prisoner who has The legality of the arrest affects only the jurisdiction of
escaped from a penal establishment or place where he is the court over his person. Appellants warrantless arrest
serving final judgment or temporarily confined while his therefore cannot, in itself, be the basis of his acquittal.
case is pending, or has escaped while being transferred
JOHN DOE WARRANT
from one confinement to another.
5
  a John Doe warrant satisfies the requirements so There are certain fundamental rights which cannot be
long as it contains a description personae such as waived even by the accused himself, but the right of
will enable the officer to identify the accused. appeal is not one of them. This right is granted solely for
the benefit of the accused. He may avail of it or not, as
The warrant for the apprehension of an unnamed party is he pleases. He may waive it either expressly or by
void, "except in those cases where it contains a implication. When the accused flees after the case has
description personae such as will enable the officer to been submitted to the court for decision, he will be
identify the accused." deemed to have waived his right to appeal from the
John Doe search warrants should be the exception and judgment rendered against him
not the rule. The police should particularly describe the The settled rule is that when an accused pleads to the
place to be searched and the person or things to be charge, he is deemed to have waived the right to
seized, wherever and whenever it is feasible. The police preliminary investigation and the right to question any
should not be hindered in the performance of their irregularity that surrounds it.
duties, which are difficult enough of performance under
the best of conditions, by superficial adherence to PRELIMINARY INVESTIGATION BY THE
technicality or far fetched judicial interference. OMBUDSMAN

SPECIAL RULE ON JUVENILES IN CONFLICT The Rules of Procedure of the Office of the Ombudsman
WITH THE LAW (Ombudsman Rules of Procedure),[34] specifically
Section 2 of Rule II, states:
 A.M. NO. 02-1-18-SC
 R.A. 9344 Evaluation. Upon evaluating the complaint, the
investigating officer shall recommend whether it may be:
INVITATIONS
a) dismissed outright for want of palpable merit;
 RA 7438
 "custodial investigation" shall include the b) referred to respondent for comment;
practice of issuing an "invitation" to a person c) indorsed to the proper government office or agency
who is investigated in connection with an which has jurisdiction over the case;
offense he is suspected to have committed,
without prejudice to the liability of the "inviting" d) forwarded to the appropriate officer or official for
officer for any violation of law fact-finding investigation;
 an invitation to attend a hearing and answer e) referred for administrative adjudication; or
some questions, which the person invited may
heed or refuse at his pleasure, is not illegal or f) subjected to a preliminary investigation.
constitutionally objectionable.
Thus, the Ombudsman need not conduct a preliminary
 Under certain circumstances, however, such an
investigation upon receipt of a complaint. Should
invitation can easily assume a different
investigating officers find a complaint utterly devoid of
appearance.
merit, they may recommend its outright dismissal.
Thus, where the invitation comes from a powerful group Moreover, it is also within their discretion to determine
composed predominantly of ranking military officers whether or not preliminary investigation should be
issued at a time when the country has just emerged from conducted.
martial rule and when the suspension of the privilege of
CUSTODIAL INVESTIGATION
the writ of habeas corpus has not entirely been lifted, and
the designated interrogation site is a military camp, the AS DIFFERENTIATED FROM PRELIMINARY
same can be easily taken, not as a strictly voluntary INVESTIGATION
invitation which it purports to be, but as an authoritative
command which one can only defy at his peril Custodial interrogation is the questioning initiated by
law enforcement officers after a person has been taken
RIGHTS OF THE ACCUSED (LEGIT NA) into custody or otherwise deprived of his freedom of
action in any significant way.
CRIMINAL DUE PROCESS
6
A preliminary investigation is an inquiry or a (1) to remain silent,
proceeding to determine whether there is sufficient
(2) to have competent and independent counsel
ground to engender a well-founded belief that a crime
preferably of his own choice, and
has been committed, and that the respondent is probably
guilty thereof and should be held for trial. (3) to be informed of the two other rights above.
It is well-settled that the foregoing legal formalities An accused who is on board the police vehicle on the
required by the fundamental law of the land apply only way to the police station is already under custodial
to extra-judicial confessions or admissions obtained investigation, and should therefore be accorded his rights
during custodial investigations. Indeed, the rights under the Constitution.
enumerated in the constitutional provision exist only in
custodial interrogations, or in-custody interrogation of RIGHT TO COUNSEL
accused persons. Right to counsel "applies only to admissions made in a
A person undergoing preliminary investigation cannot be criminal investigation but not to those made in an
considered as being under custodial investigation. administrative investigation."

The import of the distinction between custodial The purpose of providing counsel to a person under
interrogation and preliminary investigation relates to the custodial investigation is to curb the uncivilized practice
inherently coercive nature of a custodial interrogation of extracting confession even by the slightest coercion as
which is conducted by the police authorities. Due to the would lead the accused to admit something false.
interrogatory procedures employed by police authorities, What is sought to be avoided is the evil of extorting from
which are conducive to physical and psychological the very mouth of the person undergoing interrogation
coercion, the law affords arrested persons constitutional for the commission of an offense, the very evidence with
rights to guarantee the voluntariness of their confessions which to prosecute and thereafter convict him.
and admissions, and to act as deterrent from coercion by
police authorities. These constitutional guarantees have been made
available to protect him from the inherently coercive
CUSTODIAL INTERROGATION psychological, if not physical, atmosphere of such
DEFINITION investigation.

Custodial interrogation means any questioning The right to counsel attaches the moment an
initiated by law enforcement authorities after a person is investigating officer starts to ask questions to elicit
taken into custody or otherwise deprived of his freedom information on the crime from the suspected offender. It
of action in any significant manner. is at this point that the law requires the assistance of
counsel to avoid the pernicious practice of extorting
Custodial investigation refers to the critical pre-trial forced or coerced admissions or confessions from the
stage when the investigation is no longer a general person undergoing interrogation.
inquiry into an unsolved crime but has begun to focus on
a particular person as a suspect In other words, "the moment there is a move or even
urge of said investigators to elicit admissions or
Custodial investigation commences when a person is confessions or even plain information which may appear
taken into custody and is singled out as a suspect in the innocent or innocuous at the time, from said suspect, he
commission of a crime under investigation and the should then and there be assisted by counsel, unless he
police officers begin to ask questions on the suspect's waives the right, but the waiver shall be made in writing
participation therein and which tend to elicit an and in the presence of counsel
admission
DUTY OF POLICE DURING CUSTODIAL
NOTES INVESTIGATION
a person under custodial investigation is guaranteed MIRANDA RIGHTS
certain rights which attach upon the commencement
thereof, viz: The Miranda doctrine requires that:

7
(a) any person under custodial investigation has the right (1) Any person under investigation for the commission
to remain silent; of an offense shall have the right to be informed of his
right to remain silent and to have competent and
(b) anything he says can and will be used against him in
independent counsel, preferably of his own choice. If the
a court of law;
person cannot afford the services of counsel, he must be
(c) he has the right to talk to an attorney before being provided with one. These rights cannot be waived except
questioned and to have his counsel present when being in writing and in the presence of counsel.
questioned; and
(2) No torture, force, violence, threat, intimidation or
(d) if he cannot afford an attorney, one will be provided any other means which vitiate the free will shall be used
before any questioning if he so desires. against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
In the Miranda case, the Federal Supreme Court made it prohibited.
clear that what is prohibited is the "incommunicado
interrogation of individuals in a police dominated (3) Any confession or admission obtained in violation of
atmosphere, resulting in self- incriminating statements this or Section 17 shall be inadmissible in evidence
without full warnings of constitutional rights." against him.

The State's right to prosecute criminals may be a great It is required that the suspect in custodial interrogation
right but, as Lord Chancellor Sankey observed, it is not must be given the following warnings:
permissible "to do a great right by doing a little wrong".
(1) He must be informed of his right to remain silent;
The Miranda ruling does not mean that the police should
(2) He must be warned that anything he says can and
stop a person who enters a police station and states that
will be used against him; and
he wishes to confess to a crime. It does not affect
volunteered statements of guilt by persons not in police (3) He must be told that he has a right to counsel, and
custody. that if he is indigent, a lawyer will be appointed to
represent him
He (the accused) must be warned prior to any
questioning that he has the right to remain silent, that Art. III, 12(1) requires that counsel assisting suspects in
anything he says can be used against him in a court of custodial interrogations be competent and independent.
law, that he has the right to the presence of an attorney,
Independent counsel required by Art. III, 12(1) cannot
and that if he cannot afford an attorney one will be
be a special counsel, public or private prosecutor,
appointed for him prior to any questioning if he so
municipal attorney, or counsel of the police whose
desires.
interest is admittedly adverse to the accused.
Opportunity to exercise these rights must be afforded to
EXTRAJUDICIAL CONFESSION
him throughout the interrogation.
Extrajudicial confessions are presumed voluntary, and,
After such warnings have been given, and such
in the absence of conclusive evidence showing the
opportunity afforded him, the individual may knowingly
declarants consent in executing the same has been
and intelligently waive these rights and agree to answer
vitiated, such confession will be sustained.
questions or make a statement.
There are two kinds of involuntary or coerced
But unless and until such warnings and waiver are
confessions treated in this constitutional provision:
demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against (1) those which are the product of third degree methods
him. such as torture, force, violence, threat, intimidation,
which are dealt with in paragraph 2 of 12, and
RIGHTS OF THE ACCUSED UNDER
CUSTODIAL INVESTIGATION (2) those which are given without the benefit of Miranda
warnings, which are the subject of paragraph 1 of the
ARTICLE III, SECTION 12
same 12.

8
CONSEQUENCES OF VIOLATION/ NON- i. e., if it was given freely-without coercion,
OBSERVANCE intimidation, inducement, or false promises; and
credibility, i.e., if it was consistent with the normal
Confessions and admissions in violation of Section 12
experience of mankind.
(1), Article III of the Constitution are inadmissible in
evidence against the declarant and more so against third A lawyer provided by the investigators is deemed
persons engaged by the accused where he never raised any
objection against the former's appointment during the
This is so even if such statements are gospel truth and
course of the investigation and the accused thereafter
voluntarily given.
subscribes to the veracity of his statement before the
Such statements are useless except as evidence against swearing officer.
the very police authorities who violated the suspect's
RIGHT TO BE INFORMED
rights.
The right of a person under investigation "to be
It is always incumbent upon the prosecution to prove at
informed" implies a correlative obligation on the part of
the trial that prior to in-custody questioning, the
the police investigator to explain, and contemplates an
confessant was informed of his constitutional rights.
effective communication that results in understanding of
The presumption of regularity of official acts does not what is conveyed. Short of this, there is a denial of the
prevail over the constitutional presumption of innocence. right.

RIGHT TO BE HEARD APPOINTMENT OF COUNSEL DE OFICIO IN

THE ABSENCE OF RETAINED
In criminal cases where the imposable penalty may be COUNSEL/COUNSEL OF RECORD
death, as in the present case, the court is called upon to
see to it that the accused is personally made aware of the The choice of counsel by the accused in a criminal
consequences of a waiver of the right to present prosecution is not a plenary one. If the chosen counsel
evidence. In fact, it is not enough that the accused is deliberately makes himself scarce, the court is not
simply warned of the consequences of another failure to precluded from appointing a de oficio counsel, which it
attend the succeeding hearings. The court must first considers competent and independent, to enable the trial
explain to the accused personally in clear terms the exact to proceed until the counsel of choice enters his
nature and consequences of a waiver. appearance. Otherwise, the pace of a criminal
prosecution will be entirely dictated by the accused, to
The waiver of the right to present evidence in a criminal the detriment of the eventual resolution of the case
case involving a grave penalty is not assumed and taken
lightly COMPETENT AND INDEPENDENT COUNSEL

An invalid waiver of the right to present evidence and be DEFINITION

heard does not per se work to vacate a finding of guilt in
 that he is willing to fully safeguard the
the criminal case or to enforce an automatic remand of
constitutional rights of the accused, as
the case to the trial court
distinguished from one who would merely be
RIGHT TO COUNSEL; WAIVER giving a routine, peremptory and meaningless
recital of the individual's constitutional rights.
The rights to remain silent and to counsel may be waived
by the accused provided that the constitutional NOTE:
requirements are complied with. It must appear clear that
The right to counsel is a fundamental right and
the accused was initially accorded his right to be
contemplates not a mere presence of the lawyer beside
informed of his right to remain silent and to have a
the accused.
competent and independent counsel preferably of his
own choice. In addition, the waiver must be in writing EFFECTIVE
and in the presence of counsel. If the waiver complies
with the constitutional requirements, then the In People v. Bacamante, the term "effective and
extrajudicial confession will be tested for voluntariness, vigilant counsel" was explained thus:

9
  necessarily and logically [requires] that the an informed judgment on the choices explained to him
lawyer be present and able to advise and assist by a diligent and capable lawyer.
his client from the time the confessant answers
An effective and vigilant counsel necessarily and
the first question asked by the investigating
logically requires that the lawyer be present and able to
officer until the signing of the extrajudicial
advise and assist his client from the time the confessant
confession. Moreover, the lawyer should
answers the first question asked by the investigating
ascertain that the confession is made voluntarily
officer until the signing of the extrajudicial confession.
and that the person under investigation fully
understands the nature and the consequence of Moreover, the lawyer should ascertain that the
his extrajudicial confession in relation to his confession is made voluntarily and that the person under
constitutional rights. A contrary rule would investigation fully understands the nature and the
undoubtedly be antagonistic to the constitutional consequence of his extrajudicial confession in relation to
rights to remain silent, to counsel and to be his constitutional rights. A contrary rule would
presumed innocent. undoubtedly be antagonistic to the constitutional rights
to remain silent, to counsel and to be presumed innocent.
In People v. dela Cruz, an effective counsel was
characterized as: The right to counsel has been written into our
Constitution in order to prevent the use of duress and
 one who can be made to act in protection of his
other undue influence in extracting confessions from a
[accused's] rights, and not by merely going
suspect in a crime.
through the motions of providing him with
anyone who possesses a law degree. The lawyer’s role cannot be reduced to being that of a
mere witness to the signing of a pre-prepared confession,
 to be an effective counsel, a lawyer need not even if it indicated compliance with the constitutional
challenge all the questions being propounded to rights of the accused. The accused is entitled to effective,
his client. The presence of a lawyer is not vigilant and independent counsel.145 Where the
intended to stop an accused from saying prosecution failed to discharge the State’s burden of
anything which might incriminate him but, proving with clear and convincing evidence that the
rather, it was adopted in our Constitution to accused had enjoyed effective and vigilant counsel
preclude the slightest coercion as would lead the before he extrajudicially admitted his guilt, the
accused to admit something false. The counsel, extrajudicial confession cannot be given any probative
however, should never prevent an accused from value.
freely and voluntarily telling the truth
NATURE AND CAUSE OF THE ACCUSATION
N.B. LIMITATION
What controls is not the title of the information or the
However, the foregoing rule is not intended to deter to designation of the offense but the actual facts recited in
the accused from confessing guilt if he voluntarily and the information.
intelligently so desires, but to protect him from admitting
In other words, it is the recital of facts of the commission
what he is being coerced to admit although untrue. To be
of the offense, not the nomenclature of the offense, that
an effective counsel, a lawyer need not challenge all the
determines the crime being charged in the information.
questions being propounded to his client.
The real nature of the criminal charge is determined not
The presence of a lawyer is not intended to stop an
from the caption or preamble of the information, or from
accused from saying anything which might incriminate
the specification of the provision of law alleged to have
him; but, rather, it was adopted in our Constitution to
been violated, which are mere conclusions of law, but by
preclude the slightest coercion on the accused to admit
the actual recital of the facts in the complaint or
something false. The counsel should never prevent an
information.
accused from freely and voluntarily telling the truth.
Every element of the offense must be stated in the
It stresses the need to accord the accused, under the
information. What facts and circumstances are necessary
uniquely stressful conditions of a custodial investigation,

10
to be included therein must be determined by reference failure to raise the same at the opportune time, i.e.,
to the definitions and essentials of the specified crimes. before he entered his plea.
The requirement of alleging the elements of a crime in Whenever a protection given by the Constitution is
the information is to inform the accused of the nature of waived by the person entitled to that protection, the
the accusation against him so as to enable him to presumption is always against the waiver.
suitably prepare his defense. The presumption is that the
Consequently, the prosecution must prove with strongly
accused has no independent knowledge of the facts that
convincing evidence to the satisfaction of this Court that
constitute the offense
indeed the accused willingly and voluntarily submitted
The reason of the requirement in the Rules is to enable his confession and knowingly and deliberately
the accused to suitably prepare his defense. manifested that he was not interested in having a lawyer
assist him during the taking of that confession.
COMPLIANCE WITH THE REQUIREMENT TO
INFORM THE PERSON DETAINED OF RIGHTS When the Constitution requires a person under
investigation "to be informed" of his right to remain
It is settled that one's right to be informed of the right to
silent and to counsel, it must be presumed to
remain silent and to counsel contemplates the
contemplate the transmission of meaningful information
transmission of meaningful information rather than just
rather than just the ceremonial and perfunctory recitation
the ceremonial and perfunctory recitation of an abstract
of an abstract constitutional principle.
constitutional principle.
As a rule, therefor, it would not be sufficient for a police
It is not enough for the interrogator to merely repeat to
officer just to repeat to the person under investigation the
the person under investigation the provisions of Section
provisions of Section 20, Article IV of the Constitution.
12, Article III of the 1987 Constitution; the former must
He is not only duty-bound to tell the person the rights to
also explain the effects of such provision in practical
which the latter is entitled; he must also explain their
terms — e.g., what the person under interrogation may
effects in practical terms, e.g., what the person under
or may not do — and in a language the subject fairly
interrogation may or may not do, and in a language the
understands.
subject fairly understands.
The right to be informed carries with it a correlative
In other words, the right of a person under interrogation
obligation on the part of the police investigator to
"to be informed" implies a correlative obligation on the
explain, and contemplates effective communication
part of the police investigator to explain, and
which results in the subject's understanding of what is
contemplates an effective communication that results in
conveyed. Since it is comprehension that is sought to be
understanding what is conveyed. Short of this, there is a
attained, the degree of explanation required will
denial of the right, as it cannot truly be said that the
necessarily vary and depend on the education,
person has been "informed" of his rights. Now, since the
intelligence, and other relevant personal circumstances
right "to be informed" implies comprehension, the
of the person undergoing investigation.
degree of explanation required will necessary vary,
In further ensuring the right to counsel, it is not enough depending upon the education, intelligence and other
that the subject is informed of such right; he should also relevant personal circumstances of the person under
be asked if he wants to avail of the same and should be investigation. Suffice it to say that a simpler and more
told that he could ask for counsel if he so desired or that lucid explanation is needed where the subject is
one could be provided him at his request. If he decides unlettered.
not to retain a counsel of his choice or avail of one to be
provided for him and, therefore, chooses to waive his
right to counsel, such waiver, to be valid and effective, POLICE LINE UP
must still be made with the assistance of counsel, who,
When petitioner was Identified by the complainant at the
under prevailing jurisprudence, must be a lawyer
police line-up, he had not been held yet to answer for a
Admittedly, accused is deemed to have waived his right criminal offense.
to question the irregularities attending his arrest for his

11
The police line-up is not a part of the custodial inquest, The constitutional guarantees during custodial
hence, he was not yet entitled to counsel. investigation do not apply to spontaneous statements not
elicited through questioning by the authorities and given
Thus, it was held that when the process had not yet
during ordinary conversation or during media interviews,
shifted from the investigatory to the accusatory as when
whereby the suspect orally admits the commission of the
police investigation does not elicit a confession the
crime.
accused may not yet avail of the services of his lawyer
Our ruling in that case does not, however, authorize the
The stage of an investigation wherein a person is asked
police to obtain confessions they cannot otherwise obtain
to stand in a police line-up has been held to be outside
through media reporters who are acting for the police.
the mantle of protection of the right to counsel because it
involves a general inquiry into an unsolved crime and is RIGHT TO TRIAL
purely investigatory in nature.
TRIAL
It has also been held that an uncounseled identification at
An accused's right to "have a speedy, impartial, and
the police line-up does not preclude the admissibility of
public trial" is guaranteed in criminal cases by Section
an in-court identification.
14 (2) of Article III of the Constitution. This right to a
Police line-up is not part of the custodial investigation; speedy trial may be defined as one free from vexatious,
hence, the right to counsel guaranteed by the capricious and oppressive delays, its "salutary objective"
Constitution cannot yet be invoked at this stage. being to assure that an innocent person may be free from
the anxiety and expense of a court litigation or, if
CONFESSIONS DIFFERENTIATED FROM
otherwise, of having his guilt determined within the
ADMISSION
shortest possible time compatible with the presentation
REQUIREMENTS FOR CONFESSION TO BE and consideration of whatsoever legitimate defense he
VALID AND ADMISSIBLE may interpose. Intimating historical perspective on the
evolution of the right to speedy trial, we reiterate the old
EXCEPTIONAL CASES ON UNCOUNSELED legal maxim, "justice delayed is justice denied." This oft-
CONFESSIONS NOT HELD TO BE EXCLUDED repeated adage requires the expeditious resolution of
It has been held that the constitutional procedures on disputes, much more so in criminal cases where an
custodial investigation do not apply to a spontaneous accused is constitutionally guaranteed the right to a
statement, not elicited through questioning by the speedy trial.
authorities, but given in an ordinary manner whereby The right of the accused to a speedy trial and to a speedy
appellant orally admitted having committed the crime. disposition of the case against him was designed to
What the Constitution bars is the compulsory disclosure prevent the oppression of the citizen by holding criminal
of incriminating facts or confessions. The rights under prosecution suspended over him for an indefinite time,
Section 12 are guaranteed to preclude the slightest use of and to prevent delays in the administration of justice by
coercion by the state as would lead the accused to admit mandating the courts to proceed with reasonable
something false, not to prevent him from freely and dispatch in the trial of criminal cases. Such right to a
voluntarily telling the truth. speedy trial and a speedy disposition of a case is violated
only when the proceeding is attended by vexatious,
Appellant's [oral] confessions to the newsmen are not capricious and oppressive delays. The inquiry as to
covered by Section 12(1) and (3) of Article III of the whether or not an accused has been denied such right is
Constitution. not susceptible by precise qualification. The concept of a
speedy disposition is a relative term and must
The Bill of Rights does not concern itself with the
necessarily be a flexible concept.
relation between a private individual and another
individual. In determining whether the accused has been deprived of
his right to a speedy disposition of the case and to a
It governs the relationship between the individual and
speedy trial, four factors must be considered: (a) length
the State. The prohibitions therein are primarily
of delay; (b) the reason for the delay; (c) the defendant's
addressed to the State and its agents.
assertion of his right; and (d) prejudice to the defendant.
12
Closely related to the length of delay is the reason or they be immediately discharged from the custody of the
justification of the State for such delay. Different law.
weights should be assigned to different reasons or
Exhaustively explained in Corpuz v. Sandiganbayan,
justifications invoked by the State.
an accuseds right to speedy trial is deemed violated only
TRIAL IN ABSENTIA when the proceeding is attended by vexatious,
capricious, and oppressive delays.
Under Section 21, Rule 11411 of the Revised Rules of
Criminal Procedure, the defendant’s absence merely In determining whether petitioner was deprived of this
renders his bondsman potentially liable on its bond right, the factors to consider and balance are the
(subject to cancellation should the bondsman fail to following:
produce the accused within 30 days); the defendant
(a) duration of the delay;
retains his standing and, should he fail to surrender, will
be tried in absentia and could be convicted or acquitted. (b) reason therefor;
Indeed, the 30-day period granted to the bondsman to (c) assertion of the right or failure to assert it; and
produce the accused underscores the fact that mere non-
appearance does not ipso facto convert the accused’s (d) prejudice caused by such delay.
status to that of a fugitive without standing. It must be noted, however, that the right to speedy
Art. III, 14(2) of the Constitution authorizing trials in disposition of cases should be understood to be a relative
absentia allows the accused to be absent at the trial but or flexible concept such that a mere mathematical
not at certain stages of the proceedings, to wit: reckoning of the time involved would not be sufficient.

(a) at arraignment and plea, whether of innocence or of Jurisprudence dictates that the right is deemed violated
guilt, only when the proceedings are attended by vexatious,
capricious, and oppressive delays; or when unjustified
(b) during trial whenever necessary for identification postponements of the trial are asked for and secured; or
purposes, and even without cause or justifiable motive, a long period of
time is allowed to elapse without the party having his
(c) at the promulgation of sentence, unless it is for a light
case tried.
offense, in which case the accused may appear by
counsel or representative. TESTS:
At such stages of the proceedings, his presence is In Barker v. Wingo, the United States Supreme Court
required and cannot be waived. was confronted for the first time with two rigid
approaches on speedy trial as ways of eliminating some
As pointed out in Borja v. Mendoza, in an opinion by
of the uncertainty which courts experience protecting the
Justice, later Chief Justice, Enrique Fernando, there can
right.
be no trial in absentia unless the accused has been
arraigned.
CONCEPT OF SPEEDY TRIAL Fixed-time period
Section 16, Article III of the 1987 Constitution provides  which holds the view that the Constitution
that "All persons shall have the right to speedy requires a criminal defendant to be offered a trial
disposition of their cases before all judicial, quasi- within a specified time period.
judicial, or administrative bodies."
The demand-waiver rule
Castañeda, the Court called on courts to be the last to
set an example of delay and oppression in the  which provides that a defendant waives any
administration of justice and it is the moral and legal consideration of his right to speedy trial for any
obligation of the courts to see to it that the criminal period prior to which he has not demanded trial.
proceedings against the accused come to an end and that Under this rigid approach, a prior demand is a

13
 necessary condition to the consideration of the A more neutral reason such as negligence or
speedy trial right. overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate
The fixed-time period was rejected because there is no
responsibility for such circumstances must rest with the
constitutional basis for holding that the speedy trial can
government rather than with the defendant. Finally, a
be quantified into a specific number of days or months.
valid reason, such as a missing witness, should serve to
The demand-waiver rule was likewise rejected because
justify appropriate delay.
aside from the fact that it is inconsistent with this Courts
pronouncements on waiver of constitutional rights, it is The defendants responsibility to assert his right.
insensitive to a right which we have deemed
The strength of his efforts will be affected by the length
fundamental.
of the delay, to some extent by the reason for the delay,
BALANCING TEST and most particularly by the personal prejudice, which is
not always readily identifiable, that he experiences.
The Court went on to adopt a middle ground: the
balancing test, in which the conduct of both the The more serious the deprivation, the more likely a
prosecution and defendant are weighed. defendant is to complain. The defendants assertion of his
speedy trial right, then, is entitled to strong evidentiary
Mr. Justice Powell, explained the concept, thus:
weight in determining whether the defendant is being
A balancing test necessarily compels courts to approach deprived of the right.
speedy trial cases on an ad hoc basis.
We emphasize that failure to assert the right will make it
We can do little more than identify some of the factors difficult for a defendant to prove that he was denied a
which courts should assess in determining whether a speedy trial.
particular defendant has been deprived of his right.
Prejudice to the defendant.
Though some might express them in different ways, we
Prejudice, of course, should be assessed in the light of
identify four such factors: Length of delay, the reason
the interests of defendants which the speedy trial right
for the delay, the defendants assertion of his right, and
was designed to protect.
prejudice to the defendant.
This Court has identified three such interests:
FACTORS:
(i) to prevent oppressive pretrial incarceration;
1. The length of the delay;
2. is to some extent a triggering mechanism. (ii) to minimize anxiety and concern of the accused; and
3. Until there is some delay which is presumptively
(iii) to limit the possibility that the defense will be
prejudicial, there is no necessity for inquiry into
impaired.
the other factors that go into the balance.
Of these, the most serious is the last, because the
Nevertheless, because of the imprecision of the right to
inability of a defendant adequately to prepare his case
speedy trial, the length of delay that will provoke such
skews the fairness of the entire system. If witnesses die
an inquiry is necessarily dependent upon the peculiar
or disappear during a delay, the prejudice is obvious.
circumstances of the case. To take but one example, the
There is also prejudice if defense witnesses are unable to
delay that can be tolerated for an ordinary street crime is
recall accurately events of the distant past. Loss of
considerably less than for a serious, complex conspiracy
memory, however, is not always reflected in the record
charge.
because what has been forgotten can rarely be shown.
The reason the government assigns to justify the delay.
Suspicion and often, hostility. His financial resources
Here, too, different weights should be assigned to may be drained, his association is curtailed, and he is
different reasons. A deliberate attempt to delay the trial subjected to public obloquy.
in order to hamper the defense should be weighted
CONCEPT OF PUBLIC TRIAL
heavily against the government.
AQUINO

14
[a] trial of any kind or in any court is a matter of serious and incommunicable evidence of a witness' deportment
importance to all concerned and should not be treated as while testifying, and a certain subjective moral effect is
a means of entertainment, and to so treat it deprives the produced upon the witness. It is only when the witness
court of the dignity which pertains to it and departs from testifies orally that the judge may have a true idea of his
the orderly and serious quest for truth for which our countenance, manner and expression, which may
judicial proceedings are formulated. confirm or detract from the weight of his testimony.
Certainly, the physical condition of the witness will
The observation that [m]assive intrusion of
reveal his capacity for accurate observation and memory,
representatives of the news media into the trial itself can
and his deportment and physiognomy will reveal clues to
so alter and destroy the constitutionally necessary
his character. These can only be observed by the judge if
atmosphere and decorum stands.
the witness testifies orally in court
ESTRADA
The right of confrontation, on the other hand, is held to
It held that [t]he propriety of granting or denying the apply specifically to criminal proceedings and to have a
instant petition involve[s] the weighing out of the twofold purpose: (1) to afford the accused an
constitutional guarantees of freedom of the press and the opportunity to test the testimony of witnesses by cross-
right to public information, on the one hand, and the examination, and (2) to allow the judge to observe the
fundamental rights of the accused, on the other hand, deportment of witnesses. The Court explained in People
along with the constitutional power of a court to control v. Seneris, that the constitutional requirement "insures
its proceedings in ensuring a fair and impartial trial. that the witness will give his testimony under oath, thus
deterring lying by the threat of perjury charge; it forces
RIGHT TO CONFRONTATION the witness to submit to cross-examination, a valuable
The right of a party to confront and cross-examine instrument in exposing falsehood and bringing out the
opposing witnesses in a judicial litigation, be it criminal truth; and it enables the court to observe the demeanor of
or civil in nature, or in proceedings before administrative the witness and assess his credibility."
tribunals with quasi-judicial powers, is a fundamental As the right of confrontation is intended "to secure the
right which is part of due process. accused in the right to be tried as far as facts provable by
This right, however, has always been understood as witnesses as meet him face to face at the trial who give
requiring not necessarily an actual cross-examination but their testimony in his presence, and give to the accused
merely an opportunity to exercise the right to cross- an opportunity of cross-examination,"26 it is properly
examine if desired. What is proscribed by statutory norm viewed as a guarantee against the use of unreliable
and jurisprudential precept is the absence of the testimony in criminal trials. In the American case of
opportunity to cross-examine. Crawford v. Washington,27 the US Supreme Court had
expounded on the procedural intent of the confrontation
There is a great deal of difference between the face-to- requirement, thus:
face confrontation in a public criminal trial in the
presence of the presiding judge and the cross- RIGHT TO BE PRESUMED INNOCENT/
examination of a witness in a foreign place outside the PRESUMPTION OF INNOCENCE
courtroom in the absence of a trial judge The presumption of innocence of an accused in a
The main and essential purpose of requiring a witness to criminal case is a basic constitutional principle, fleshed
appear and testify orally at a trial is to secure for the out by procedural rules which place on the prosecution
adverse party the opportunity of cross-examination. "The the burden of proving that an accused is guilty of the
opponent", according to an eminent authority, "demands offense charged by proof beyond reasonable doubt.
confrontation, not for the idle purpose of gazing upon Corollary thereto, conviction must rest on the strength of
the witness, or of being gazed upon by him, but for the the prosecutions evidence and not on the weakness of the
purpose of cross examination which cannot be had defense
except by the direct and personal putting of questions The burden of proof placed on the Prosecution arises
and obtaining immediate answers." There is also the from the presumption of innocence in favor of the
advantage of the witness before the judge, and it is this – accused that no less than the Constitution has
it enables the judge as trier of facts "to obtain the elusive
15
guaranteed. Conversely, as to his innocence, the accused incrimination is testimonial compulsion, that is, the
has no burden of proof, that he must then be acquitted giving of evidence against himself through a testimonial
and set free should the Prosecution not overcome the act.
presumption of innocence in his favor.
The right against self-incrimination, when applied to a
In other words, the weakness of the defense put up bythe criminal trial, is contained in this terse injunction – no
accused is inconsequential in the proceedings for as long person shall be compelled to be a witness against
as the Prosecution has not discharged its burden of proof himself. In other words, he may not be required to take
in establishing the commission of the crime charged and the witness stand. He can sit mute throughout the
in identifying the accused as the malefactor responsible proceedings. His right to counsel is expressed in the
for it. same laconic style: he shall enjoy the right to be heard
by himself and counsel. This means inversely that the
RIGHT AGAINST SELF-INCRIMINATION
criminal prosecution cannot proceed without having a
Once again we lay down the rule that the constitutional counsel by his side. These are the traditional rights of the
guaranty, that no person shall be compelled in any accused in a criminal case. They exist and may be
criminal case to be a witness against himself, is limited invoked when he faces a formal indictment and trial for
to a prohibition against compulsory testimonial self- a criminal offense. But since Miranda vs Arizona 384
incrimination. The corollary to the proposition is that, an US 436, the law has come to recognize that an accused
ocular inspection of the body of the accused is needs the same protections even before he is brought to
permissible. The proviso is that torture of force shall be trial. They arise at the very inception of the criminal
avoided. Whether facts fall within or without the rule process – when a person is taken into custody to answer
with its corollary and proviso must, of course, be to a criminal offense. For what a person says or does
decided as cases arise. during custodial investigation will eventually be used as
evidence against him at the trial and, more often than
This right construed as the right to remain completely not, will be the lynchpin of his eventual conviction. His
silent may be availed of by the accused in a criminal trial becomes a parody if he cannot enjoy from the start
case; Petitioner, as accused, occupies a different tier of the right against self-incrimination and to counsel.
protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the witness It was never intended to hamper the traditional law-
stand and claim the privilege as each question requiring enforcement function to investigate crime involving
an incriminating answer is hot at him, an accused may persons not under restraint.
altogether refuse to take the witness stand and refuse to
BAIL
answer any all questions.
DEFINITION
This right of the accused is extended to respondents in
administrative investigations but only if they partake of  "the security required and given for the release
the nature of a criminal proceeding or analogous to a of a person who is in the custody of the law, that
criminal proceeding. In Galman vs. Pamaran, the Court he will appear before any court in which his
reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA appearance may be required as stipulated in the
1059) to illustrate the right of witnesses to invoke the bail bond or recognizance”
right against self-incrimination not only in criminal
proceedings but also in all other types of suit. Bail is the security required by the court and given by
the accused to ensure that the accused appears before the
The constitutional right of an accused against self- proper court at the scheduled time and place to answer
incrimination proscribes the use of physical or moral the charges brought against him or her. It is awarded to
compulsion to extort communications from the accused the accused to honor the presumption of innocence until
and not the inclusion of his body in evidence when it his guilt is proven beyond reasonable doubt, and to
may be material. Purely mechanical acts are not included enable him to prepare his defense without being subject
in the prohibition as the accused does not thereby speak to punishment prior to conviction
his guilt, hence the assistance and guiding hand of
counsel is not required. (People vs. Olvis, 238 Phil. 513 RULES:
[1987]) The essence of the right against self-
16
Only those persons who have been either arrested, (3) Penalty for the offense charged;
detained or otherwise deprived of their liberty will ever
(4) character and reputation of the accused;
have occasion to seek the benefits of said provision.
(5) health of the accused;
Therefore, in narrow cases involving special
appearances, an accused can invoke the processes of the (6) character and strength of the evidence;
court even though there is neither jurisdiction over the
person nor custody of the law. However, if a person (7) probability of the accused appearing in trial;
invoking the special jurisdiction of the court applies for (8) forfeiture of other bonds;
bail, he must first submit himself to the custody of the
law. (9) whether the accused was a fugitive from justice when
arrested; and
If we allow the granting of bail to persons not in the
custody of the law, it is foreseeable that many persons (10) if the accused is under bond for appearance at trial
who can afford the bail will remain at large, and could in other cases.
elude being held to answer for the commission of the
But, at bottom, in bail fixing, "the principal factor
offense if ever he is proven guilty
considered, to the determination of which most other
But in order that a person can invoke the constitutional factors are directed, is the probability of the appearance
precept, it is not necessary that he should wait until a of the accused, or of his flight to avoid punishment."
formal complaint or information is filed against him.
Of importance then is the possible penalty that may be
From the moment he is placed under arrest, detention or meted. Of course penalty depends to a great extent upon
restraint by the officers of the law, he can claim this the gravity of offense.
guarantee of the Bill of Rights, and this right he retains
DUTIES OF THE TRIAL JUDGE IN CASE AN
unless and until he is charged with a capital offense and
APPLICATION FOR BAIL IS FILED:
evidence of his guilt is strong.
1. In all cases, whether bail is a matter of right or
The purpose of bail is to secure one's release and it
of discretion, notify the prosecutor of the
would be incongruous to grant bail to one who is free.
hearing of the application for bail or require him
Thus, `bail is the security required and given for the
to submit his recommendation (Section 18, Rule
release of a person who is in the custody of the law.'
114 of the Rules of Court as amended)
(Rule 110, section 1), and evidently the accused do not
come within its purview.
2. Where bail is a matter of discretion, conduct a
The purpose for bail is to guarantee the appearance of hearing of the application for bail regardless of
the accused at the trial, or whenever so required by the whether or not the prosecution refuses to present
court. The amount should be high enough to assure the evidence to show that the guilt of the accused is
presence of the accused when required but no higher strong for the purpose of enabling the court to
than is reasonably calculated to fulfill this purpose. exercise its sound discretion; (Section 7 and 8,
supra)
A bail application does not only involve the right of the
accused to temporary liberty, but likewise the right of 3. Decide whether the guilt of the accused is strong
the State to protect the people and the peace of the based on the summary of evidence of the
community from dangerous elements. These two rights prosecution;
must be balanced by a magistrate in the scale of justice,
hence, the necessity for hearing to guide his exercise of 4. If the guilt of the accused is not strong,
jurisdiction discharge the accused upon the approval of the
GUIDELINES IN BAIL FIXING, which may be bailbond (Section 19, supra) Otherwise petition
summarized as follows: should be denied.[39]

(1) ability of the accused to give bail; RULES ON AVAILABILITY OF BAIL TO AN

ACCUSED:
(2) nature of the offense;
17
1. Admission to bail is a matter of right at any stage of strong. The court's discretion is limited to determining
the action where the charge is not for a capital offense or whether or not evidence of guilt is strong. But once it is
is not punishable by reclusion perpetua; [Sec. 3, Rule determined that the evidence of guilt is not strong, bail
114, 1985 Rules on Crim. Procedure also becomes a matter of right. . . .
2. Regardless of the stage of the criminal prosecution, no The clear implication therefore, is that if an accused who
bail shall be allowed if the accused is charged with a is charged with a crime punishable by reclusion perpetua
capital offense or of an offense punishable by reclusion is convicted by the trial court and sentenced to suffer
perpetua and the evidence of guilt is strong; [Idem]. such a penalty, bail is neither a matter of right on the part
of the accused nor of discretion on the part of the court.
3. Even if a capital offense is charged and the evidence
In such a situation, the court would not have only
of guilt is strong, the accused may still be admitted to
determined that the evidence of guilt is strong — which
bail in the discretion of the court if there are strong
would have been sufficient to deny bail even before
grounds to apprehend that his continued confinement
conviction — it would have likewise ruled that the
will endanger his life or result in permanent impairment
accused's guilt has been proven beyond reasonable
of health, [De la Rama vs. People's Court, 43 O.G. No.
doubt. Bail must not then be granted to the accused
10, 4107 (1947)] but only before judgment in the
during the pendency of his appeal from the judgment of
regional trial court; and
conviction.
4. No bail shall be allowed after final judgment, unless
The arraignment of an accused is not a prerequisite to
the accused has applied for probation and has not
the conduct of hearings on his petition for bail. A person
commenced to serve sentence, [Section 21, Rule 114,
is allowed to petition for bail as soon as he is deprived of
1985 Rules of Court] the penalty and offense being
his liberty by virtue of his arrest or voluntary surrender.
within the purview of the probation law."
An accused need not wait for his arraignment before
PRESENCE OF ANY OF WHICH COULD filing a petition for bail.
PRECLUDE THE GRANT OF BAIL
For when bail is a matter of right, an accused may apply
(a) That the accused is a recidivist, quasi-recidivist, or for and be granted bail even prior to arraignment.
habitual delinquent, or has committed the crime
The ruling in Lavides also implies that an application
aggravated by the circumstance of reiteration;
for bail in a case involving an offense punishable by
(b) That the accused is found to have previously escaped reclusion perpetua to death may also be heard even
from legal confinement, evaded sentence, or has violated before an accused is arraigned
the conditions of his bail without valid justification;
WAIVER OF RIGHT TO BAIL
(c) That the accused committed the offense while on
 right to bail is another of the constitutional rights
probation, parole, or under conditional pardon;
which can be waived. It is a right which is personal to
(d) That the circumstances of the accused or his case the accused and whose waiver would not be contrary to
indicate the probability of flight if released on bail; or law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right
(e) That there is undue risk that during the pendency of recognized by law.
the appeal, the accused may commit another crime."
DUTY OF POLICE DURING CUSTODIAL
RIGHT TO BAIL (WHEN A MATTER OF RIGHT INVESTIGATION (BAIL)
AND WHEN A MATTER OF DISCRETION)
From the moment he is placed under arrest, or is
It is a matter of right when the offense charged is detained or restrained by the officers of the law, he can
punishable by any penalty lower than reclusion perpetua. claim the guarantee of his provisional liberty under the
To that extent the right is absolute. Bill of Rights, and he retains his right to bail unless he is
Upon the other hand, if the offense charged is punishable charged with a capital offense, or with an offense
by reclusion perpetua bail becomes a matter of punishable with reclusion perpetua or life imprisonment,
discretion. It shall be denied if the evidence of guilt is and the evidence of his guilt is strong.

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WHEN ALLOWED EVEN IF “DISCRETION” • The course of the inquiry may be left to the discretion
of the court which may confine itself to receiving such
This national commitment to uphold the fundamental
evidence as has reference to substantial matters,
human rights as well as value the worth and dignity of
avoiding unnecessary thoroughness in the examination
every person has authorized the grant of bail not only to
and cross-examination of witnesses and reducing to a
those charged in criminal proceedings but also to
reasonable minimum at the amount of corroboration
extraditees upon a clear and convincing showing:
particularly on details that are not essential to the
(1) that the detainee will not be a flight risk or a danger purposes of the hearing."
to the community; and
In Borinaga v. Tamin, a clear guideline on the exercise
(2) that there exist special, humanitarian and compelling of judicial discretion in hearing petitions for bail -
circumstances.
x x x (w)hile the determination of whether or not
That all persons shall before conviction be bailable evidence of guilt is strong is a matter of judicial
except when charge is a capital offense and the evidence discretion, this discretion by the nature of things may
of guilt is strong. the general rule, therefore, is that all rightly be exercised only after the evidence is submitted
persons, whether charged or not yet charges, are, before to the court at such hearing. Whether the motion for bail
their conviction, entitled to provisional release on bail, of an accused who is in custody in a summary
the only exception being where the charge is a capital proceeding or in the course of a regular trial the
offense and the evidence of guilt is found to be strong. prosecution must be given an opportunity to present,
within a reasonable time, all the evidence that it may
At the hearing of the application for bail, the burden of desire to introduce before the court may resolve the
showing that the case falls within the exception is on the motion for bail. If the prosecution should be denied of
prosecution, according to Rule 110, section 7. such an opportunity, there would be a violation of
The determination of whether or not the evidence of procedural due process, and the order of the court
guilt is strong is, as stated in Herras Teehankee case, a granting bail should be considered void on that ground x
matter of judicial discretion. x x (E)ven where the prosecutor refuses to adduce
evidence in opposition to the application to grant and fix
This discretion, by the very nature of things, may rightly bail, the court may ask the prosecution such questions as
be exercise only after the evidence is submitted to the would ascertain the strength of the states evidence or
court at the hearing. judge the adequacy of the amount of bail x x x
• Neither under the old nor under the new Rules is there DOUBLE JEOPARDY
any specific provision defining what kind of hearing it
should be, but in the two cases cited at the footnote Double jeopardy exists when the following requisites are
hereof it was stated that the hearing should be summary present: (1) a first jeopardy attached prior to the second;
or otherwise in the discretion of the court. (2) the first jeopardy has been validly terminated; and (3)
a second jeopardy is for the same offense as in the first.
• "By 'summary hearing,' this Court added, "we mean A first jeopardy attaches only (a) after a valid
such brief and speedy method of receiving and indictment; (b) before a competent court; (c) after
considering the evidence of guilt as is practicable and arraignment; (d) when a valid plea has been entered; and
consistent with the purpose of the hearing which is (e) when the accused has been acquitted or convicted, or
merely to determine the weight of the evidence for the case dismissed or otherwise terminated without his
purposes of bail. express consent.
• On such hearing, the court does not sit to try the merits For a claim of double jeopardy to prosper, the following
or to enter into any nice inquiry as to the weight that requisites must concur:
ought to be allowed to the evidence for or against
accused, nor will it speculate on the outcome of the trial (1) there is a complaint or information or other formal
or on what further evidence may be therein offered and charge sufficient in form and substance to sustain a
admitted.' (8 C.J.S. 93, 94.) conviction;

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(2) the same is filed before a court of competent
jurisdiction;
(3) there is a valid arraignment or plea to the charges;
and
(4) the accused is convicted or acquitted or the case is
otherwise dismissed or terminated without his express
consent.
It is the conviction or acquittal of the accused or the
dismissal or termination of the case that bars further
prosecution for the same offense or any attempt to
commit the same or the frustration thereof; or
prosecution for any offense which necessarily includes
or is necessarily included in the offense charged in the
former complaint or information
The proscription against double jeopardy only envisages
appeals based on errors of judgment, but not errors of
jurisdiction.
Jurisprudence recognizes two grounds where double
jeopardy will not attach, these are:
(i) on the ground of grave abuse of discretion amounting
to lack or excess of jurisdiction; and/or
(ii) where there is a denial of a party’s due process
rights.

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