December 23, 2022 @ 1:40 PM 1 month ago

WHEN does custodial investigation commence?

Custodial investigation commences “when the police 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 who starts the interrogation and propounds questions to the person to elicit incriminating statements.” (People v. Pepino, January 12, 2016)

This investigation involves the questioning initiated by law enforcement officers after a person has been taken into custody or deprived o freedom of action in any significant way. (In one case, it was held that the roadside questioning of a motorist does not fall under custodial interrogation, nor can it be considered a formal arrest. [Luz v. People, 667 SCRA 421])

R.A. NO. 7438

In line with the policy of the State to value the dignity of every human being and guarantee full respect for human rights, Republic Act No. 7438 (“Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation”) was enacted.

Under this law, “custodial 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, without prejudice to the liability of the “inviting” officer for any violation of law.

Further, under RA No. 7438, any person arrested detained or under custodial investigation shall at all times be assisted by counsel. Any waiver by a person arrested or 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.

The person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. (The person’s “immediate family” shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.)


Stemming from the landmark decision of the United States Supreme Court, Miranda v. Arizona [384 U.S. 436 (1966), the Miranda Doctrine requires that: (a) any person under custodial investigation has the right to remain silent; (b) anything he says can and will be used against him in a court of law; (c) he has the right to talk to an attorney before being questioned and to have his counsel present when being questioned; and (d) if he cannot afford an attorney, one will be provided before any questioning if he so desires. (People v. Mojello, March 9, 2004) These rights cannot be waived except in writing and in the presence of counsel. (Article III, Section 12 [1] of the 1987 Constitution)

In Berkemer v. McCarty, 468 U.S. 420 [1984], the US Supreme Court noted that the Miranda warnings must also be given to a person apprehended due to a traffic violation. (Luz v. People, 667 SCRA 421)