By: Belinda Grace G. Gervasio

In television series or movies, police custodial investigation scenes usually depict an arrested person, handcuffed or detained in a small holding room, while being questioned (sometimes even tortured or threatened) by police officers into admitting the commission of a crime.

But real-life custodial investigations in the Philippines are not confined only to this scenario. For the “full picture,” it is helpful that you are familiar with the answers to four essential questions:

First: What is custodial investigation?

Second: What are the rights guaranteed to a person under custodial investigation?

Third: What are the effects of, and penalties  for, violation of these rights?

Fourth: When do these rights cease to be available?

FIRST: What is Police Custodial Investigation?

Our Supreme Court consistently defines custodial investigation as the stage where an investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police or other law enforcement agents who carry out a process of interrogation that lends itself to elicit incriminating statements. It involves questioning initiated by law enforcement officers after a person has been taken into custody or deprived of freedom of action in any significant way.

However, Republic Act No. 7438, or the Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation, has expanded the definition of custodial investigation. Specifically, the law provides that said investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed.


Given this, it is incorrect to conclude that custodial investigation is always the consequence of an arrest. Someone can be considered to be under custodial investigation when invited for questioning by law enforcement officers, even though the person has not been formally arrested.

SECOND: What are the Rights Guaranteed to a Person under Custodial Investigation?

After knowing what’s custodial investigation, the next crucial matter to discuss is the rights of persons subjected thereto.

  1. Miranda Rights

Article III, Section 12 (1) of the Constitution provides that any person under investigation for the commission of an offense is guaranteed the following rights

a.  The right to remain silent – A person under custodial investigation  has the right to refuse answering any question. If he indeed refuses, this may not be used against him.

b.  The right to competent and independent counsel, preferably of his own choice. If the person cannot afford services of counsel, he must be provided with one – In People v. Rapeza (G.R. No. 169431), the Supreme Court held that the purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads suspects to make self-incriminating statements. In order to comply with the constitutional mandate, there should be meaningful communication to, and understanding of rights by the suspect, as opposed to a routine, peremptory and meaningless recital thereof.

Not only does a person under custodial investigation have the right to counsel, but the provision states that said counsel must be an independent and competent one, preferably of his own choice. Jurisprudence explains that the lawyer called to be present during the investigation should be as far as reasonably possible the choice of the individual undergoing questioning.  If the lawyer were one furnished in the person’s behalf, he should be present and able to advise and assist his client from the time the latter answers the first question asked by the investigating officer until the signing of the extrajudicial confession, if any. The lawyer should ascertain that the confession is made voluntarily and the person under investigation fully understands the nature and consequences of his confession in relation to his constitutional rights.

c.   The right to be informed of such rights – In affording this right to a person under custodial investigation, it is not sufficient that the investigating officer reads out the rights, or merely repeats what is stated in the constitutional provision. The officer is duty-bound to also explain the effects of these rights and ensure the person’s understanding thereof, in a language known to and understood by him.

These three rights, widely known as the “Miranda rights”, were adopted by Philippine jurisprudence and later on included in the drafting of the 1987 Philippine Constitution, following the 1966 decision of the United States Supreme Court in the landmark case of Miranda v. Arizona (384 U.S. 436). Here, the defendants made confessions or admissions without any evidence of them being apprised of their constitutional rights during the interrogation process.  The US Supreme Court held that no statements stemming from questioning initiated by law enforcement officers may be used by the prosecution, unless it demonstrates the use of procedural safeguards effective to secure the constitutional rights of a person under custodial interrogation.

These rights may not be waived unless made in writing and in the presence and assistance of counsel.


But note that not all types of investigatory situations are classified as custodial investigations where these rights may be invoked.

In People v. Gamboa (G.R. No. 91374), the Supreme Court held that subjection to paraffin test does not require that the right to have competent and independent counsel be afforded as this is necessary only in testimonial compulsions, not when it is the body of the accused which is proposed to be examined. Another example would be People v. Rueras (G.R. 174471), where the Supreme Court reiterated the view that police lineups are not part of custodial investigation; therefore, the right to counsel cannot be invoked at this stage.

  1. Right against Torture, Force, Violence, Threat, Intimidation

Article III, Section 12 of the Constitution further provides that no torture, violence threat, intimidation, or any other means which vitiate the freewill shall be used against a person under investigation for the commission of an offense. It further states that the use of secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.

  1. Right to Visits and Conferences

In addition to the constitutional rights, Republic Act No. 7438 provides that a person under custodial investigation shall be allowed visits by or conferences with any member of his immediate family (spouse, fiancé or fiancée, parent or child, sibling, grandparent or grandchild, aunt or uncle, niece or nephew, guardian or ward), or by counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights, or by any international non-governmental organization duly accredited by the Office of the President.

(To know more about a person’s rights during inquest proceedings, see Senior Partner Sig Fortun’s quick guide.)

THIRD: What are the Effects of, and Sanctions for, Violation of these Rights?

Article III, Section 12(3) of the Constitution states that any confession or admission in violation of the above rights shall be inadmissible in evidence. This is called the exclusionary rule. A confession or admission should be given voluntarily, free from any suspicious circumstances tending to cast doubt upon the integrity thereof. Otherwise, the same cannot be used as evidence in any proceeding against the source of confession or admission.

Confessions or admissions covered by this provision need not be explicit, as long as they are part of evidence communicative in nature. In People v. Jungco (G.R. No. 78531), the Supreme Court applied this rule to participation of the accused in a re-enactment of the crime scene. In People v. Enriquez (G.R. No. 90738), the High Court held that the marijuana cigarettes where the accused wrote his name without the assistance of counsel is inadmissible as evidence.

If the constitutional rights of a person under custodial investigation are violated, there are corresponding penal and civil sanctions, as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. These sanctions are provided for in different statutes, i.e., civil sanctions, in the form of damages, covered by Article 32 of the New Civil Code, and penal sanctions covered by the penal clause of Republic Act No. 7438, where a fine, penalty, or both, may be imposed upon an erring officer.

FOURTH: When do these Rights Cease to be Available?

Custodial investigation does not include quasi-judicial or judicial investigations conducted by the fiscal or the judge. Thus, in People v. Ayson (G.R. No. 85215), Justice Andres Narvasa discussed that the rights of a person under custodial interrogation do not apply or extend to persons under preliminary investigation, or those already charged in court for a crime.

Having said all these, you might be thinking that custodial investigation is probably (read: definitely) not a situation you would imagine or choose yourself to be in.

However, preparedness is always key.


(Belinda Grace G. Gervasio joined the Firm in 2018 and assists Founding Partner Sig Fortun in handling criminal law cases primarily defending accused individuals. Sig’s email is [email protected] while Bel may be reached at [email protected].)


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