PART II 1. Define police power
2. the making of a deposit equivalent to the ASSESSED VALUE OF THE
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2. the making of a deposit equivalent to the ASSESSED VALUE OF THE
PROPERTY SUBJECT TO
EXPROPRIATION.
3. If the expropriation is being done by a Local Government Unit, the Supreme Court decision in the case of THE CITY OF ILOILO VS. JUDGE LEGASPI, RTC 22, ILOILO CITY, 444 SCRA 269, shall be complied with:
1. The complaint for expropriation filed in court is sufficient in form and substance;
and
2. The expropriator must deposit the amount equivalent to 15% of the fair market value of the property to be expropriated based on its current tax declaration.
70. Who determines the just compensation in expropriation cases? What are the factors to be considered in determining the same?
Determination of just compensation is a judicial function with the assistance or recommendation of the court-appointed commissioners. (Manotok vs. CA, May 21,1987)
The factors to be considered in determining the just compensation/market value are:
1. cost of acquisition;
2. the current value of like properties;
3. its actual or potential uses;
4. particular case of lands;
5. their size, shape, location; and 6. the tax declarations thereon.
Finally, note that as held in the case of Republic vs. Santos, 141 SCRA 30, the market value as recommended by the board of commissioners appointed by the court were at best only ADVISORY AND PERSUASIVE AND BY NO MEANS FINAL OR BINDING. (BERKENKOTTER, INC. VS.
COURT OF APPEALS AND REPUBLIC OF THE PHILIPPINES, December 14, 1992).
71. What are the requisites of ―taking‖
in expropriation cases?
The Requisites of taking are:
a. the expropriator must enter the property;
b. the entrance must not be for just a momentary period;
c. the entry must be under warrant of color or title;
d. the property must be devoted for public use; and
e. the owner must be ousted from beneficial use of his land. (Rep. vs.
Castellvi, 58 SCRA 336)
72. May a private property already used as a private cemetery be expropriated for another public purpose?
No, a private property which is already devoted to public use may not be expropriated for another public purpose. (City of Manila vs. Chinese Community, 40 Phil.
349).
72-a. In case the government will not be able to use the land expropriated for the purpose for which it was intended, may the landowner ask for its reversion to him?
Yes, provided he complies with the following:
1. Return the just compensation paid by the government;
2. pay the legal interest;
3. pay the necessary expenses incurred by the government in maintaining the lot;
and
4. pay the pecuniary value of the services in managing it to the extent that the landowner will be benefited thereby.
(MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY VS. LOZADA, February 25, 2010)
73. What are the rights of a person under custodial investigation under the
―Mahinay Doctrine‖ or the ―Expanded Miranda Doctrine‖?
The rights are:
1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown a copy of the warrant of arrest, if any; Every other
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warnings, information or communication must be in a language known to and understood by said person;
2. He must be warned that he has the right to remain silent and that any statement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, , he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means---telephone, radio, letter or messenger---with his lawyer (either retained or appointed), any member of his immediate family; or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-governmental organization. IT SHALL BE THE RESPONSIBILITY OF THE OFFICER
TO ENSURE THAT THIS IS
ACCOMPLISHED;
7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time or state of the process that he does not wish to be questioned with the warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation has begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any other time during the process, regardless of whether he may have answered some questions or volunteered some information or statements;
11. He must be informed that any statement OR EVIDENCE, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, SHALL BE INADMISSIBLE IN EVIDENCE.
74. What are the rights of a person under ―custodial detention‖ or for one suspected or arrested as a terrorist under the Human Security Act?
The rights of an accused under the Anti-Terrorism Act are embodied under Section 21 thereof which states:
Section 21. Rights of a person under custodial detention.- The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed by the arresting police or law enforcement officers to whose custody the person concerned is brought, of his or her right:
1. To be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the IBP or the Public attorney‘s office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO‘s thus contacted to immediately
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visit the person detained and provide him with legal assistance. These rights cannot be waived except in writing and in the presence of the counsel of choice;
2. Informed of the cause or causes of his detention in the presence of his legal counsel;
3. Allowed to communicate freely with his legal counsel and to confer with them at any time without restriction;
4. Allowed to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and be visited by them; and
5. Allowed freely to avail of the services of a physician or physicians of choice.
75. Are the above rights available to a suspect if he is under investigation by a private person?
No. (THE PEOPLE OF THE PHILIPPINES VS. JOSE TING LAN UY, JR., et al., 475 SCRA 248). The claim that his affidavit is inadmissible in evidence in accordance with section 12 [1] of the Bill of Rights is not tenable. The ―investigation‖ under said provision refers to ―custodial investigation where a suspect has already been taken into police custody and that the investigating officers begin to ask questions to elicit information and confessions or admissions from the suspect. Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect (People vs. Duenas, Jr., 426 SCRA 666).
Clearly, therefore, the rights enumerated by the accused are not available BEFORE GOVERNMENT INVESTIGATORS ENTER THE PICTURE. The protective mantle of section 12, article III does not apply:
[1] to administrative investigations (People vs. Judge Ayson, 175 SCRA 216);
[2] confession to a private individual (Kimpo vs. CA, 232 SCRA 53);
[3] verbal admission made to a radio announcer who was not a part of the investigation (People vs. Ordono, 334 SCRA 673);
[4] or even to a Mayor approached as a personal confidante and not in his official capacity (People vs. Zuela, 323 SCRA 589).
[5] In fact, even a videotaped interview where the accused willingly admit his guilt in the presence of newsmen is not covered by the said provision though the trial courts were warned by the supreme Court to take extreme caution in admitting similar confessions because of the distinct possibility that the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television (People vs. Endino, 353 SCRA 307).
76. When is custodial investigation deemed to have started so as to entitle the suspect to be informed of his rights under the
―Mahinay Doctrine‖ or the ―Expanded Miranda Doctrine‖? How about if the suspect is walking towards the police station with the policemen who invited him to the police station, is he entitled to be informed of his rights already if the latter will ask him questions regarding the commission of a crime where he is the suspect?
Custodial investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting confession from the suspect in connection with an alleged offense.
THE PLACE OF INTERROGATION IS NOT DETERMINATIVE OF THE EXISTENCE
OR ABSENCE OF CUSTODIAL
INVESTIGATION BUT THE TONE AND MANNER OF QUESTIONING BY THE POLICE AUTHORITIES. Thus, there was custodial investigation when the police authorities, upon their arrest of some of the accused, immediately asked them regarding their participation in the commission of the crime, even while they were still walking along the highway on their way to the police station.
(PEOPLE VS. BARIQUIT, 341 SCRA 600) 77. Are spontaneous admissions made before a person could be informed of his rights during custodial investigation admissible as evidence?
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Yes. Spontaneous statements voluntarily given, as where appellant orally admitted killing the victim before the barangay captain (who is neither a police officer nor a law enforcement agent), do not fall under custodial investigation. Such admission, even without the assistance of a lawyer, does not violate appellant‘s constitutional rights AND THEREFORE ADMISSIBLE IN EVIDENCE.
(PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS.
MAYORGA, G.R. NO. 135405, 346 SCRA 458, NOVEMBER 29, 2000).
78. What are the requisites before an extrajudicial confession is admissible?
To be admissible in evidence, an extrajudicial confession must be: (i) voluntary;
(ii) made with the assistance of competent and independent counsel; (iii) express; and (iv) in writing.
A suspect‘s confession, whether verbal or non-verbal, when taken without the assistance of counsel, without a valid waiver of such assistance, regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellant‘s confession were gospel truth. (PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS.
SAMOLDE, G.R. NO. 128551, 336 SCRA 632, JUL. 31, 2000).
To be admissible in evidence, an extrajudicial confession must be: (i) voluntary;
(ii) made with the assistance of competent and independent counsel; (iii) express; and (iv) in writing.
A suspect‘s confession, whether verbal or non-verbal, when taken without the assistance of counsel, without a valid waiver of such assistance, regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellant‘s confession were gospel truth.
79. Is the presence of a lawyer to assist the suspect during custodial investigation sufficient to comply with the requirements of the Constitution?
No. As held in PEOPLE VS.
PATUNGAN, 354 SCRA 413, the mere presence of a lawyer is not sufficient compliance with the constitutional requirement of assistance of counsel. Assistance of counsel must be effective, vigilant and independent. A lawyer who could just hear the investigation going on while working on another case hardly satisfies the minimum requirements of effective assistance of counsel.
Not only was the accused subjected to custodial investigation without counsel, he was likewise denied effective assistance of counsel during the taking of his extra-judicial confession.
80. From what time must the counsel assist the suspect during custodial investigation? Who must select such counsel?
In PEOPLE V. JIMENEZ, G.R. No.
82604. December 12, 1991, it was held that the counsel must be present from the inception of the custodial investigation not at any time thereafter. Also, the lawyer who assists the suspect under custodial interrogation should be of the latter's own choice, not one foisted on him by the police investigators or other parties. In this case, the former judge whose assistance was requested by the police was evidently not of Marcos Jimenez' own choice;
she was the police officers' own choice; she did not ask Marcos if he was willing to have her represent him. This is not the mode of solicitation of legal assistance contemplated by the Constitution. Furthermore, the former judge was not present when Marcos was being interrogated by the police. While she asked him if he had voluntarily given the statements contained in the typewritten document, this is far from being substantial compliance with the constitutional duty of police investigators during custodial interrogation.
81. Is the extrajudicial confession of a suspect obtained without the assistance of a lawyer, but speaks of gospel truth, admissible in evidence?
No. In PEOPLE VS. GALIT, 135 SCRA 465, PEOPLE VS. PANFILO CABILES, 284 SCRA 199; and PEOPLE VS. TAN, 286 SCRA 207, it was held that even if the confession of the accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the
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absence of coercion or even if it was voluntarily given.
In order that a confession is admissible, the following requisites must be present:
a. the confession must be voluntary;
b. the confession must be made with the assistance of a competent and independent counsel;
c. the confession must be express;
d. and the confession must be in writing.
The above requirements, however, are not applicable when the suspect makes a spontaneous statement, not elicited through questioning by the authorities, BUT GIVEN IN AN ORDINARY MANNER WHEREBY THE ACCUSED ORALLY ADMITTED HAVING COMMITTED THE CRIME. This was the decision of the Supreme Court in the case of PEOPLE VS. ANDAN, March 3, 1997 when the accused made a voluntary and verbal confession to the Municipal Mayor that he committed the crime imputed to him. As such, his uncounselled confession is admissible in evidence.
82. What are the two (2) kinds of coerced or involuntary confessions under Section 12, Art. III of the Constitution?
The two (2) kinds of involuntary or coerced confessions under Art. III, Section 12 of the Constitution. These are:
a. confession which are the product of third degree methods such as torture, force, violence, threat, intimidation; and
b. those which are given without the benefit of Miranda Warnings.
PEOPLE VS. OBRERO, 332 SCRA 190
83. What is the status of coerced confessions as evidence in court?
Coerced or involuntary confessions are inadmissible as evidence being the ―fruit of the poisoned tree.‖
84. Is the right to counsel satisfied if the suspect was assisted by the Station Commander of the Western Police District while he was being investigated by the
policemen of the same station? How about if the investigation is being conducted by the NBI and the suspect was ordered assisted by a lawyer-applicant therein?
There is no compliance of the constitutional requirement of competent and independent counsel to assist an accused during custodial investigation when the accused was assisted by the Station Commander of the WPD, Atty. De los Reyes, while being investigated by other policemen of the same police station because the interest of the police is naturally adverse to the accused.
In fact, the SC in the case of PEOPLE VS.
JANUARIO, 267 SCRA 608 held that a lawyer applying for a position in the NBI could not validly assist an accused being investigated then by the NBI. (PEOPLE VS. OBRERO, 332 SCRA 190)
85. Is the right to counsel available to a suspect during a police line-up?
The Supreme Court had conflicting decisions on this aspect but ended up with the rule that since the accused will not be made to make any testimony or statement during the police line-up, then he is not under custodial investigation and therefore, there is no need for him to be assisted by a lawyer. ( P vs.
Usman Hassan, 157 SCRA 261; Gamboa vs.
Judge Cruz, 162 SCRA 642; DE LA TORRE VS.
CA, 294 SCRA 196 and PEOPLE VS. HATTON) 86. Is there a valid custodial investigation if the lawyer who assisted him during custodial investigation is a public attorney who was not chosen by the accused himself but given to him free of charge? Could the Fiscal also represent the accused during custodial investigation to satisfy the requirement of the Constitution that the accused is assisted by counsel?
The counsel must be the choice of the accused or suspect. (P. vs. Alegria, September 28, 1990) Also, the Fiscal could not have protected the rights of the suspect, even if they are known to each other, since the Fiscal is there for the private complainant. (P. vs.
Matos-Viduaya, September 11, 1990)
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86-a. The appellants were arrested by the PAOCTF for Kidnapping and Murder of two (2) minor children of a businessman from Bulacan. While under custodial investigation by Col. Cesar Mancao, the lawyers given to assist them tare the lawyers of PAOCTF. Was the confessions obtained during the custodial investigation admissible in evidence?
Yes. As held in the case of PEOPLE OF THE PHILIPPINES VS. DOMINGO REYES, ET AL., G.R. No. 178300, March 17, 2009, the Supreme Court held that since the evidence shows that the lawyers of PAOCTF assisted them from the start up to the end of their custodial investigation and that their rights were protected, the same is admissible as evidence especially so that there is no evidence
Yes. As held in the case of PEOPLE OF THE PHILIPPINES VS. DOMINGO REYES, ET AL., G.R. No. 178300, March 17, 2009, the Supreme Court held that since the evidence shows that the lawyers of PAOCTF assisted them from the start up to the end of their custodial investigation and that their rights were protected, the same is admissible as evidence especially so that there is no evidence