SHOW-UP AND POLICE LINE-UP

General: No right to counsel

Out-of-court identification like a “show-up” (accused is brought face to face with the witness for identification), or “police line-up” (suspect is identified by witness from a group of persons gathered for that purpose). Exception: Right to counsel if accusatory. The moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect. [Gamboa v Cruz (1988)]

Police Line-Ups

When petitioner was identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel.

Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer. [Escobedo vs. Illinois of the United States Federal Supreme Court (1964)]

However, given the clear constitutional intent in the 1987 Constitution, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel. [Gamboa vs. Cruz (1988)]

B. REQUISITES

Essence: Effective communication by the investigator of rights of accused [People vs. Agustin (1995)]

(a) Right to Remain Silent

The warning is needed simply to make the person under custodial investigation aware of the existence of the right. This warning is the threshold requirement for an intelligent decision as to its exercise.

More importantly, such a warning is an absolute pre-requisite in overcoming the inherent pressures of the interrogation atmosphere.

Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.

(b) Right against Self-Incrimination under Art. III, Sec. 12

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.

This warning is needed in order to make him aware not only of the privilege to remain silent, but also of the consequences of forgoing it.

(c) Right to Counsel

Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. –

(a) Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel; otherwise the waiver shall be null and void and of no effect. [RA 7438, Rights of Persons under Custodial Investigation, Section 2.] Essence: when a counsel is engaged by anyone acting on behalf of the person under investigation, or appointed by the court upon petition by said person or by someone on his behalf. [People v. Espiritu, G.R. No. 128287, February 2, 1999]

Competent and independent counsel preferably of the suspect’s own choice. Not independent counsel: special counsel, prosecutor, counsel of the police or a municipal attorney whose interest is adverse to that of the accused [People v. Fabro], mayor [People v. Taliman], barangay captain [People v. Tomaquin].

A lawyer who was applying for work in the NBI cannot be considered independent because he cannot be expected to work against the interest of a police agency he was hoping to join, as a few months later, he in fact was admitted into its work force. [People vs. Januario (1997)]

Not competent counsel: lawyer signing only as witness [People v. Ordono], mayor of town where accused is detained [People v. Velarde].

Failure to ask for a lawyer does not constitute a waiver.

No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings have been given. Request for assistance of counsel before any interrogation cannot be ignored/denied by authorities. Not only right to consult with an attorney but right to be given a lawyer to represent him if he’s indigent

(d) Rights to Visitation And Conference Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with:

(1) Any member of his immediate family, or (2) Any medical doctor;

(3) Priest or religious minister (a) chosen by him; or (b) By his counsel; or

(c) By any national non-governmental organization duly accredited by the Commission on Human Rights or (d) By any international non-

governmental organization duly accredited by the Office of the President.

(e) 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.

Exclusionary Rule

According to this rule, once the primary source ( the tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the fruit of the poisonous tree is the indirect result of the same illegal act. The fruit of the poisonous tree is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. [People vs. Samontanez (2000)]

Violations of the Miranda rights render inadmissible only the extrajudicial confession or admission made during the custodial investigation. The admissibility of other evidence is not affected even if obtained or taken in the course of the custodial investigation. [People v. Malimit (1996)]

Extrajudicial Confession by a person