Key LS Personnel

Asof of March April 2012 (as 2012)

Director, LS Deputy Director, LS Chief of Staff, LS : : : PCSUPT FRANCISCO A UYAMI JR PSSUPT ULYSSES J ABELLERA PSSUPT BARTOLOME C TOBIAS PSUPT GEORGE L ALMADEN PSUPT ARTHUR LLAMAS PSUPT ROMAN E LORETO PCINSP LYRA STELLA C VALERA PSINSP GARRY FRANCO C PUASO

LEGAL ADVISORIES
Monthly Publication of PNP Legal Service Camp Crame, Quezon City www.legalservice.org.ph April 2012

VOLUNTARY SURRENDER AND EXTRA JUDICIAL CONFESSIONS DURING CUSTODIAL INVESTIGATION

This Legal Advisory focuses on the effects and consequences of voluntary surrender and extra judicial confessions and lays down the DOs and DONTs to be observed by our police officers in appreciating the voluntary surrender of a person claiming to be the perpetrator of a crime and in taking or accepting extra judicial confessions of suspects during custodial investigation.

Chief, Legal Assistance Div: Chief , Special Cases Div. : Chief, Administrative & Resource Mgt. Div OIC, Legal Research & Evaluation Div. Supervisor, Legal Advice 24/7 : : :

PARA MAGAMPANAN NG TAMA ANG TUNGKULING PULIS,

MAGTANONG.

Statistics gathered from the LEGAL ADVICE 24/7 show that six (6%) percent of the total inquiries received by the Legal Service in 2011 sought guidance on voluntary surrender (VS) and extra judicial confessions (EJC).

6%

Inquiries Received CY 2011

VS & EJC Others

VOLUNTARY SURRENDER
Q. What is the value of voluntary surrender in the prosecution of a crime? A. It is a mitigating circumstance under the Revised Penal Code. If it can be established during trial that the offender had voluntarily surrendered himself to a person in authority or his agents (Article 13, paragraph 7, RPC) and such circumstance is appreciated by the court as mitigating, the imprisonment penalty imposed by the law for the crime committed may be reduced by the court. Q. What is the value of voluntary surrender from the perspective of law enforcement? A. The voluntary surrender of a suspect, if established by convincing evidence, will generally negate questions regarding the legality of his detention. Q. What are the requisites of voluntary surrender? A. The requisites of voluntary surrender are as follows: a. That the offender had not been actually arrested; b. That the offender surrendered himself to a person in authority or to the latters agent; and c. That the surrender was voluntary
(Reyes, The Revised Penal Code, Criminal Law, 2006 Ed., p. 298)

Q. If a person comes to the station and voluntarily surrenders a weapon and claims that it was used in the commission of a crime, without saying anything more as to the identity of the perpetrator, what should police officers do? A. It is also advisable for the police to officially record the fact that an alleged weapon was voluntarily surrendered by such person at the station. Again, the official record may be introduced as an admissible documentary evidence at the preliminary investigation, and even during trial. B.

Q. In the course of investigating a crime, if a person comes to the station and voluntarily surrenders himself claiming to be the perpetrator, what should police officers do? A. It is advisable for our police officers to immediately enter the fact of his voluntary surrender into the blotter. By doing so, the blotter becomes an admissible documentary evidence to prove that the police did not effect any arrest but, on the contrary, it was the suspect who walked into the station. The entries in the blotter should include the reasons (e.g. guilty feelings, bothered by conscience, avoiding shame of being arrested, to insure personal security, or persuaded by family) given by such person which impelled him to voluntarily surrender. Moreover, the police officer who recorded such entry into the blotter may likewise execute an affidavit which may later be introduced in evidence to serve as basis of his testimony in court.

The fact that such person did not say anything more as to the identity of the perpetrator should provoke thorough deliberation from the point of view of criminal investigation. Investigators should be circumspect in ascertaining whether or not it is plausible for the said weapon to have been used in the commission of the offense, as claimed, vis-a-vis empirical data, available physical evidence, sworn statement of witnesses, or results of forensic examination. Investigators must also determine how it came to the possession of such person. This can be elicited through searching questions such as Nakita nyo po ba na ito ang sandatang ginamit sa krimen? or Paano nyo po nasabi na ito ang sandatang ginamit kung hindi nyo aktwal na nasaksihan ang krimen? The voluntary surrender of the alleged weapon used in the commission of a crime, however, cannot be appreciated as a mitigating circumstance to benefit such person if he later turns out to be the perpetrator. The law requires that that the offender must have voluntarily surrendered himself to a person in authority or his agents. (People of the Philippines vs Jose De Ramos, CA-GRR No. 15010-R, April 26, 1956) Q. When is surrender voluntary? A. To be considered voluntary, the surrender must be spontaneous, showing the intent of a person to submit himself unconditionally to authorities, either because: (a) He acknowledges his guilt, or (b) He wishes to spare the authorities from the trouble and expenses necessarily incurred in his search and capture
(People of the Philippines vs. Lagrana, No. -68790, January 23, 1987)

Q: May police officers take custody of a person who voluntarily surrendered himself and detain him? A. No, if the corpus delicti of the crime is not established. Q. What is the test of spontaneity? A. The word spontaneous emphasizes the idea of an inner impulse, acting without external stimulus. The conduct of the accused, and not his intention alone, after the commission of the offense, determines the spontaneity of the surrender. (Reyes, The Revised Penal Code, Criminal Law, 2006 Ed., p. 308) VOLUNTARY SURRENDER, PRESENT:
JURISPRUDENCE The accused, after plunging a bolo into the victims chest, ran toward the municipal building. Upon seeing a patrolman, he immediately threw away his bolo, raised his two hands, offered no resistance and said to the patrolman here is my bolo, I stabbed the victim. Voluntary surrender was appreciated. (People of the Philippines vs Tenorio, 4 SCRA 700) The accused did not escape despite having every opportunity to do so but, instead, called the police department. When the authorities arrived at the scene of the crime, he voluntarily approached them and, without revealing his identity, told them that he will help in the investigation. When brought to the station as a possible witness, he immediately confided to the investigator that he was voluntarily surrendering and, in the process, also surrendered the fatal gun used in the shooting of the victim. It was held that there was voluntary surrender. (People of the Philippines vs.Benito, No. L32042, February 13, 1975) REASONS There was desire to voluntarily surrender himself; The act was spontaneous and not impelled by an external stimulus The utterances indicated acknowledgment of guilt

EXTRA JUDICIAL CONFESSIONS DURING CUSTODIAL INVESTIGATION

Q. What is extra judicial confession? A. It is a declaration of a person, given outside of court, acknowledging his guilt of the offense charged, or of any offense necessarily included therein, which may be used as evidence against him. (lifted from Section 33, Rule 130, Evidence) Taking or accepting extra judicial confessions from suspects during custodial investigation is governed by Constitutional provisions on the Bill of Rights and by the provisions of RA No. 7438. VOLUNTARY SURRENDER, ABSENT:
JURISPRUDENCE After the shooting incident, the appellant went to the PC headquarters, but he only reported the incident. There was no valid surrender. (People of the Philippines vs. Rogales, 6 SCRA 830) REASONS He did not actually surrender himself Merely reporting the incident does not evince a desire on his part to own responsibility for the killing Even if, assuming, there was desire to surrender, mere intention to surrender, without actually surrendering, is not mitigatinG The motivating factor behind their surrender was only to insure their safety The surrender was just a spurof-the moment thing and there was no acknowledgment of criminal responsibility.

All the actuations of the accused, when appreciated in totality, indicated that his intention to voluntarily surrender was brought about by an inner impulse and was not driven by an external stimulus. The accused submitted himself to the authorities unconditionally

Q. The person who voluntarily surrendered would also like to execute a statement narrating in detail his commission of the crime. What should the police do? A. The police should consider such offer as an intention to give an extra judicial confession in writing, hence, he should observe the requirements laid down in RA No. 7438.

The accused went into hiding. When authorities discovered their hide out, they surrendered after they realized that the forces of law were closing in on them (People of the Philippines vs Mationg, No. L-33488, March 29, 1982) or when the accused refused to surrender to the police until only much later when they knew they were already completely surrounded and there was no more chance of escape, there was no voluntary surrender. (People of the Philippines vs. Salvilla, GR No. 86163, April 26, 1990)

Q. What is custodial investigation? A. As an investigative process, custodial investigation can be traced to American jurisprudence, the landmark case of Miranda vs Arizona, where the US Supreme Court elaborated that, custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Miranda vs Arizona, 384 U.S. 436) Custodial investigation presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him. The rule begins to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime, and direction is aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements. (Jesalva vs. People of the Philippines, GR No. 187725, January 19, 2011) In Philippine jurisdiction, custodial investigation includes the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed. (Section 2, last paragraph, RA No. 7438) Q. What are the essential requisites to fall within the meaning of custodial investigation? A. There is custodial investigation when: a. A person has been taken into custody or otherwise deprived of his freedom of action in any significant way; b. A law enforcement officer took the said person into custody or deprived him of his freedom of action; and c. A law enforcement officer initiated questioning such person in connection with the commission of an offense.
(Sadili & Pena, Comprehensive Crim Invest Procedure, 1998 Ed., p. 284)

DIRECTORY OF IBP OFFICES

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The presence of counsel in any police investigation of a person for the commission of an offense [is] an adequate protective device necessary to make the process of police investigation conform to the dictates of the privilege against self-incrimination. His presence would insure that statements made in the government established atmosphere are not the product of compulsion. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the danger of untrustworthiness. With a lawyer present, the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercise, the lawyer can testify to it in court. (People of the Philippines vs. Jimenez, 71 SCRA 186)

Q. Should a police officer take or accept an oral extra judicial confession during custodial investigation? A. No, this is not advisable. An oral extra judicial confession only relayed to a police officer has limited evidentiary value during trial. RA No. 7438 provides that any extra judicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latters absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him. (Section 2[d]) Q. How may police officers comply with the requirement of RA No. 7438 for them to provide a competent and independent counsel if the person arrested, detained or under custodial investigation cannot afford one?

Q. A person came to the station and told the police officer that he wants to give a statement about his commission of a crime. He had no counsel and explained that he cannot afford one. The police officer also had no means to provide him with a counsel. Is it proper for the police officer to take the statement of said person? A. No. Such statement is in the nature of an extra judicial confession. RA No. 7438 provides that, when giving a statement about his commission of a crime, such person has the right to be assisted by counsel. This right should be explained to him by the police officer. The police officer must make sure such person understands this right. The law also requires such person to sign his extra judicial confession in the presence of his counsel. Otherwise, such extra judicial confession shall be inadmissible as evidence in any proceeding. (Section 2[d]) Q. What should the police officer do if such person insists? A. The police officer could only advise such person that he must first waive his following rights: - right to have a competent and independent counsel, preferably of his own choice; - right to be provided with a counsel, if he cannot afford the services of one - right to be assisted by counsel at all times; - right to be assisted by counsel during the execution of his extra judicial confession - right to be assisted by counsel during the signing of such extra judicial confession The waiver itself should be in writing. An oral waiver shall have no effect. It should be signed by such person. And the signing should be done also in the presence of his counsel. Section 2[e] of RA No. 7438 provides that any waiver by a person arrested, detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. Q. To whom may police officers coordinate requests for assistance of counsel? The police officer may coordinate with the different chapters of the Integrated Bar of the Philippines (IBP) to request for the assistance of a counsel who will assist such person during the preparation of the waiver and be present during the signing thereof.

Q. After a valid waiver, may such person already sign his extra judicial confession? A. Yes, but the signing should be in the presence of his counsel or in the latters absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him.

TIPS TO POLICE OFFICERS WHEN TAKING DOWN EXTRA JUDICIAL CONFESSIONS

1. In taking down extra judicial confessions, police officers should quiz the suspect by asking several clear questions broken down into short inquiries. 2. A long question followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights under the Constitution and our laws. (People of the Philippines vs. Galit, 135 SCRA 473).
xxx I. TANONG: Ipinagbibigay-alam ko sa inyo ang inyong mga karapatan sa ilalim ng Saligang-Batas ng hindi kayo magbigay ng isang salaysay, na hindi rin kayo maaaring piliitn or saktan at pangakuan upang magbigay ng naturang salaysay, na anuman ang inyong sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban sa inyo sa anumang usapin na maaaring ilahad sa anumang hukuman o tribunal dito sa Pilipinas, na sa pagsisiyasat na ito ay maaaring katulungin mo ang isang manananggol at kung sakaling hindi mo kayang bayaran ang isang mananangol ay maaaring bigyan ka ng isang ng NBI. Ngayon at alam mo na ang mga ito, nakahanda ka bang magbigay ng isang kusang-loob na salaysay sa pagtatanong na ito? Opo. xxx

SAGOT:

CAVEAT!
An extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (Section 3, Rule 133, Evidence) Corpus Delicti means the body or substance of the crime. In a primary meaning, it is the fact that a crime has been actually committed. In a secondary meaning, it is the subject of the crime and its visible effect.
(Sadili & Pea, Comprehensive Criminal Investigation Procedure, 1998 Ed. p. 297)

TIPS TO POLICE OFFICERS WHEN EXPLAINING THE RIGHT TO BE ASSISTED BY COUNSEL DURING CUSTODIAL INVESTIGATION
1. Police officers should EXPLAIN to the person arrested, detained or under custodial investigation that he has the right to be informed of his rights. One of these is his right to have a competent and independent counsel preferably of his own choice, guaranteed by the Constitution. He also has the right to be assisted by such counsel, at all times, as provided under RA No. 7438. Ibig ko po na ipagbigay alam sa inyo na karapatan ninyong mabigyang kaalaman tungkol sa inyong mga karapatan sa ilalim ng batas at mapagpaliwanagan tungkol dito. Naiintindihan nyo po ba ito? 2. Police officers must ENSURE THAT HE UNDERSTANDS his right to be informed of his rights before enumerating, one by one, his rights during custodial investigation. 3. Such person must be given ample OPPORTUNITY TO PROCURE THE SERVICES OF A COUNSEL of his own choice whom he considers as competent. No custodial investigation can be conducted unless it be in the presence of a counsel. (Agpalo, Handbook on Criminal Procedure, 2001 Ed., p 301). Any confession of the person or any document signed by him expressly or impliedly admitting the commission of a crime, without having been assisted by his lawyer, is inadmissible in evidence. (People of the Philippines vs Campos, 202 SCRA 387)

4. The counsel he chooses or, if he cannot afford one, the counsel provided to him shall BE ALLOWED TO CONFER PRIVATELY with him. This should also be explained by police officers to the person arrested, detained or under custodial investigation. By doing so, the police officer will not render illusory his right to remain silent, with the understanding that anything he would say might be used as evidence against him. By doing so, such person may request the police officer to allow him to privately confer with his counsel if, in the course of the questioning, he chooses to exercise his right to remain silent. The person arrested must be informed that he may indicate, in any manner at any time or stage of the process, that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him anymore if the same has been commenced or the interrogation must cease if it has already begun. (People of the Philippines vs. Mahinay, 302 SCRA 544)

Naiintindihan nyo po ba ito?

5. Whether such person has a lawyer or not, police officers must INFORM HIM THAT NO CUSTODIAL INVESTIGATION IN ANY FORM SHALL BE CONDUCTED, except in the presence of his counsel or when valid waiver has been made. (People of the Philippines vs. Mahinay, 302 SCRA 544)