The attorney of the person arrested have the right to visit and confer
privately with such person in jail or any place of custody at any hour
of the day or night.
RA 7438 defined the RIGHTS OF PERSONS ARRESTED, DETAINED OR
UNDER CUSTODIAL INVESTIGATION with the penalties for violation thereof.
1. Custodial investigation
- Involves any 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.
- It is only after investigation ceases to be a general inquiry
into an unsolved crime and begins to focus on a particular
suspect, the suspect is taken into custody, and the police
carries out a process of interrogations that lends itself to
eliciting incriminating statements that the rule begins to
- Embraced in custodial investigation:
- invited for questioning
- Not embraced in custodial investigation:
- police line-up
- ultraviolet ray examination
- normal audit examination by the COA of the accountability
of a public officer
2. When the threat or promise was made by, or in the presence of, a
person in authority, who has, OR is supposed by the accused to have
power or authority to fulfill the threat or promise, the confession
of the accused is inadmissible.
3. Presumption of regularity in the performance of duties:
- Does not apply during in-custody investigation, nor can it
prevail over the constitutional right of the accused to be
4. The arresting officer may be held civilly liable for damages under
Art. 32 of the Civil Code. The very nature of Art. 32 is that the
wrong may be civil or criminal. It is not necessary that there
should be malice or bad faith.
5. On Civil Procedure:
- Section 20 Rule 14 of the 1997 Rules of Civil Procedure
provides in part that the inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person
of the defendant shall not be deemed a voluntary appearance.
Section 8 Rule 15 provides that subject to the provisions of
Section 1 Rule 9, a motion attacking a pleading, order,
judgment or proceeding shall include all objections then
available, and all objections not so included shall be deemed
waived. These changes in the 1997 Rules of Civil Procedure
are applicable to criminal cases as Section 3 Rule 1 thereof
provides that “these rules shall govern the procedure to be
observed in actions, civil or criminal, and special proceedings.”
Moreover, the omnibus motion rule applies to motions to quash.
6. Section 26 of Rule 114 of the New Rules of Criminal Procedure
provides that bail is not a bar to objection on illegal arrest,
lack of or irregular preliminary investigation. This is an abandonment
of the Cojuangco, Jr. v. Sandiganbayan ruling.