Category: Criminal Law

What police or arresting officers must do before searching the contents and data stored in your cellular phone

Previously, we stated that the contents and data stored in your cellular phone is protected by the Constitution; that regardless whether your cellular phone is considered a dangerous weapon or have been used to commit an offense, the contents or data stored in it may not be searched without a judicial warrant.

That while it may be legally possible to conduct warrantless search of the physical cellphone itself, the legality of searching without a judicial warrant the contents or data in a cellphone is another thing.  Any police officer who wants to search the contents or data stored in your cellular phone must first obtain a judicial search warrant.

In the case Riley v. California, the United States Supreme Court answered the question of what police must do before searching a cellphone seized incident to an arrest: get a warrant.  

This foreign jurisprudence is important because Philippine Courts often look at US jurisprudence for analogous cases in deciding similar questions of law.

For full text of the Riley decision, see  http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf.

So when you are arrested, or about to be arrested, and the arresting officer or person asks “may I take a look at the contents of your cellphone” or “can you please unlock your cellphone”, your answer should be “no, you cannot search the contents of my cellphone, get a judicial warrant” or something like that.

 

PS: In page 9 of the Riley decision, the author of this article has yet to verify whether the proverbial visitor referred to in the decision is marvin.

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The unconstitutional rule in rules of criminal procedure

The process of prosecution of offences in the Philippines is basically divided into three; 

  1. Investigation and prosecution of offences;
  2. Arrest, Arraignment, and Trial [including appeals];
  3. Judgment of acquittal, or conviction

 

This process is governed by Rule 110 to Rule 127 of the Philippine Rules of Criminal Procedure. 

In this process, among others, an accused or a person charged with an offence has the following rights under Article 3 Bill of Rights of the 1987 Philippine Constitution

  1. Presumption of innocence – In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved [Sec. 14(2), Article 3].
  2. Right against unreasonable searches – The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches . . . of whatever nature and for any purpose shall be inviolable, and no search warrant . . . shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized [Sec. 2, Article 3].
  3. Right to remain silent – Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent [Sec. 12(1), Article 3].

However, it would seem that a part of the criminal procedure adopted and promulgated by the Philippine Supreme Court infringes (ie., violates) the above constitutional rights – –  specifically Rule 112, Sec. 3[c] and 3[e], Preliminary Investigation.

 

What is a preliminary investigation?

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Rule 112, Sec. 1].

The Department of Justice (and other officers as maybe authorized by law) conducts the preliminary investigation [Rule 112, Sec. 2]. In this preliminary investigation stage, the person who is being investigated for the commission of offence is called the respondent.

The Ombudsman follows the same Rule 112 in conducting preliminary investigation for offences committed by public officials [for the succeeding paragraphs, the prosecutor, fiscal,  investigating officer,  DOJ, or Ombudsman are one and the same except as otherwise stated].

As the prosecution arm of the Philippines, the DOJ investigates the commission of crimes, and prosecutes offenders [1987 Administrative Code under Chapter I, Title III, Book IV].

This power is not light, the DOJ [ie., the prosecutor, or colloquially known as fiscal] determines who should or should not be held for trial [Rule 112, Sec. 1].

If the enormity of this power is not clear yet, lets repeat: preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Rule 112, Sec. 1].

More bluntly, the fiscal determines whether the person investigated, or respondent, should or should not be held for criminal trial. A criminal court trial will, normally, lead to acquittal or conviction. Conviction carries punishment of imprisonment, or fine, or both depending on the offence violated.

According to Sec. 3 of Rule 112, the preliminary investigation is conducted in the following manner:

(a)     The complaint is filed with the prosecutor (or investigating officer) in accordance with the required form and substance.

(b)     Within 10 days after the filing of the complaint, the prosecutor (or investigating officer) shall either; 

    • Dismiss it if he finds no ground to continue with the investigation, or 
    • Issue a subpoena attaching to it a copy of the complaint and its supporting affidavits and documents. The subpoena is issued against the respondent [ie., the person who is being charged to have committed a criminal act or offense; Rule 110, Sec. 3].

The respondent has the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.

(c)     Within 10 days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified, with copies thereof furnished by him to the complainant. The respondent is not allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d)    If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the prosecutor (or investigating officer) shall resolve the complaint based on the evidence presented by the complainant.

(e)     The prosecutor (or investigating officer) may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f)      Within ten (10) days after the investigation, the prosecutor (or investigating officer) shall determine whether or not there is sufficient ground to hold the respondent for trial.

(g)     Eventually [Rule 112, Sec. 4] if the Department of Justice;

    • Determines there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial, an accusation in writing (called the Information) charging a person with an offense is filed with the criminal trial court [Rule 110, Sec. 4]. If not; 
    • The complaint will be dismissed and no information will be filed with the court.

 

Infringement of the 3 constitutional rights

At the outset, we need to be reminded that since time immemorial the preliminary investigation is viewed as a right for the benefit of the defense or the respondent or the person being investigated[see: People vs. Carlos, 78 Phil. 535];

“[t]he purpose of a preliminary investigation or a previous inquiry of some kind, before an accused person is placed on trial, is to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of a public trial.  It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional in its fundament, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the accused’s claim to a preliminary investigation would be to deprive him of the full measure of his right to due process.

Although a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has been called a judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when there is an opportunity to be heard and for the production of and weighing of evidence, and a decision is rendered thereon”. [Sales v. Sandiganbayan G.R. No. 143802, November 16, 2001; emphasis supplied]

Supreme Court decisions view the preliminary investigation as serving a 3-fold purpose:

“(1) To inquire concerning the commission of crime and the connection of accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there is probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial;

(2) to preserve the evidence and keep the witnesses within the control of the state; and

(3) to determine the amount of bail, if the offense is bailable.” [Arula v. Espino, G.R. No. L-28949, June 23, 1969; emphasis supplied]

Granted, the purposes and functions of preliminary investigation are ideal.

However, seen through the lens of presumption of innocence doctrine as well as with other 2 constitutional rights, Rule 112, Sec. 3[c] and 3[e] may not be.

One wonders, given the above, how the rules of preliminary investigation in Rule 112, Sec. 3[c] and 3[e] infringes or violates the 3 constitutional rights, after all the “primary duty of a lawyer engaged in public prosecution is not to convict but to see that justice is done” [Rule 6.01, Canon of Legal Ethics].

Let’s walk through it.

 

1. The right on presumption of innocence

In all criminal prosecutions, the “accused” shall be presumed innocent until the contrary is proved [Sec. 14(2), Article 3].

One will say that the phrase “respondent” [ie., the person who is being charged to have committed a criminal act or offense] in preliminary investigation stage is not the same as the phrase “accused” in the context of the Sec. 14(2), Article 3 of the Constitution because the “accused” is a person who has been charged in criminal trial court of an offence; in the preliminary investigation stage, the prosecutor or investigating officer is not the criminal trial court. Further, only when an information [an accusation in writing] is filed with the court may the charged person, normally, be called an “accused”.

However, if there is value in the constitutional right of presumption of innocence we should not quibble over semantics because the right is not merely statutory or legislative (ie., one created by an ordinary law passed by Congress), it is the sovereign Filipino people that ordained and promulgated this right. What again is the highest law of the land?

Therefore, the constitutional right to presumption of innocence should also apply to the respondent in the preliminary investigation, not only to the person accused (the “accused”) in criminal court.

If one will insist that there should be difference between “respondent” and “accused” for purposes of invoking the right to presumption of innocence, one should just remember that Rule 110 Prosecution of Offenses (or Offences) Sec. 1 provides that one of the process to institute or start criminal prosecution or criminal action is by the filing of complaint with the prosecutor (or investigating officer) for the purpose of conducting the requisite preliminary investigation and then recall the above constitutional provision “in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved”.

The process “criminal prosecution” should be considered one continuous process in its entirety from the moment the police received a tip about a crime or a person and/or when a complainant comes forth to support that tip, when a complaint is filed, when the fiscal conducts its own internal prosecutorial processes by checking whether it has enough evidence to file a case in court, during trial, and until final judgment of criminal conviction or acquittal. In this one continuous process, until the contrary is proved you are to be presumed innocent. Just as a person who opens his mouth to yawn is presumed innocent and cannot be seen as preparing or attempting to utter words of defamation, the respondent in the preliminary investigation process should also be presumed innocent.

The absurdity of differentiating accused and respondent for purpose of proper invocation of presumption of innocence is at the preliminary investigation stage itself if the fiscal says “Mr. Respondent, this preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief whether a crime has been committed by you, that you are probably guilty thereof, and should be held for trial, but no you have no constitutional right to be presumed innocent in my eyes during this stage but you are to help me determine if we should hold you for trial”.

If its agreed (and assuming one agrees, or agrees not to disagree) that there should be no difference between “respondent” and “accused” for purposes of invoking the right to presumption of innocence, how does the rule on preliminary investigation violates the right?

Sec. 3(c) of Rule 112 infringes the respondent’s right to presumption of innocence by asking him;

“(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.” [emphasis supplied] 

If you are presumed innocent, you should not be asked by way of subpoena to come to the preliminary investigation to prove your innocence by submission of counter-affidavit and that of your witnesses and other supporting documents relied upon for your defense; if you are presumed innocent, you should not be required to prove your innocence and participate in an inquiry or proceeding to show your innocence that there is no sufficient ground to engender a well-founded belief that a crime has been committed, that you are not probably guilty thereof, and that you should not be held for trial [Rule 112, Sec. 1].

If its true that in criminal prosecutions, the accused (ie., respondent in preliminary investigation) has the right to be presumed innocent until the contrary is proved, why is he being mandated to submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense?Why is he being asked to submit counter-affidavit which will aid the prosecutor (or investigating officer) determine whether or not there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial?

In almost all cases, when the Department of Justice determines that there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial the accusation in writing, or what is termed information, filed in criminal court will be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to support the information [Rule 112, Sec. 6]; respondent’s counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense [albeit unsuccessful defense in the preliminary investigation stage] may also be included in the information filed with the court if needed to support the information. In this situation, when the affidavits and documents of respondent is included in the information filed with the court, [and he is now considered an accused because of the filing of the information] the following things come to mind regarding these defence affidavits and documents; 

  • If the defence documents will be treated as judicial admission because it is already filed with the criminal court along with the information – judicial admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof [Rule 129, Sec. 4, Rules of Evidence]; or
  • If the defence documents will be treated as extrajudicial admission filed with the criminal court along with the information – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him [Rule 130, Sec. 26]; 

in relation to another constitutional right that “no person shall be compelled to be a witness against himself” [Sec. 17, Art. 3, Constitution]. If you are asked by subpoena to submit your affidavits in the preliminary investigation stage and the affidavits now form your judicial or extrajudicial admission, is it not that you were compelled, directly or indirectly, to be a witness against yourself by way of the affidavits you submitted in the preliminary investigation? 

On these defence affidavits and documents subsequently filed in criminal court, one would say that Sec. 3[d] Rule 112 does not actually force you because Sec. 3[d] provides that “if the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant”. This argument is best answered by a question “so why use the force of subpoena?” which as discussed below has a chilling effect. 

But going back to the presumption of innocence, if there is value to constitutional presumption of innocence, should the respondent, being presumed innocent, just sit back and relax and not be mandated or forced to participate in the preliminary investigation? 

If there is such value, and he enjoys the presumption of innocence, he should not be subpoenaed with the complaint and supporting affidavits and documents, and be asked to the effect: you the respondent shall submit your counter-affidavit and that of your witnesses and other supporting documents relied upon for your defense to help us, the Department of Justice, determine whether or not to hold you for criminal trial. 

If it’s the DOJ’s job to investigate the commission of crimes and prosecute offenders, the respondent, enjoying the presumption of innocence, should not be asked, nor even forced by way of subpoena, to participate, or help, the DOJ determine whether or not there is a sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. 

If he has the presumption of innocence, he should just say: it is your job to investigate crimes and prosecute offenders, and I am presumed innocent, so please leave me alone. 

Talking about forcing the constitutionally presumed innocent respondent by way of subpoena, what then is a Subpoena

“Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.” [Rule 21, Sec. 1, Rules of Court; emphasis supplied] 

The DOJ, in conducting preliminary investigation, is empowered by law and Rule 112 to subpoena the respondent [Rule 112, Sec. 3(b)]. 

According to Rule 21; 

“Section 2.      By whom issued. — The subpoena may be issued by —

. . . 

(c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body;

. . .

Section 9.         Contempt. — Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.” [emphasis supplied]

Failure to obey the subpoena has a chilling effect because you may be cited for indirect contempt according to Rule 71 of the rules of court.

May you be imprisoned for indirect contempt: yes.

As well as in the Philippines, in other democratic countries the belief is that: 

“The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and lawabiding members of the community until proven otherwise. [R. v. Oakes; Canada] 

“This presumption is to be found in every code of law which has reason and religion and humanity for a foundation” [Coffin vs. US; United States].

If its believed that everyone is presumed law-abiding member of the society and is presumed innocent, why is a person who was previously relaxing is now asked by the process of preliminary investigation to burden himself with the financial costs of preparing for his counter affidavit;

“The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party [Sec. 3[b], Rule 112; emphasis supplied]; 

as well as the hassle, time, energy, and money in attending the preliminary investigation hearing [Sec. 3[e], Rule 112] not to mention the social and public stigma of humiliation that he was a respondent in an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed by him, that he is probably guilty thereof, and should be held for trial. 

If there is a constitutional right to presumption of innocence, a person charged with an offence does not have to present evidence or prove anything by affidavit or otherwise that suggests he/she is innocent of the crime or crimes charged. 

If there is a constitutional right to presumption of innocence, and it is the DOJ or Ombudsman’s job to investigate an offence and gather evidence to support a case filed in court, the respondent should not be asked to participate in this investigation because the rule on preliminary investigation is actually a process of fishing of evidence that may be used against the person charged with an offence. 

 

2. Right against unreasonable searches 

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches . . . of whatever nature and for any purpose shall be inviolable, and no search warrant . . . shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched [Sec. 2, Article 3, Constitution]. This right is sometimes called the right to be left alone

This right protects all reasonable expectations of privacy [Katz doctrine]. The reasonableness of a person’s expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable [Ople v. Torres, G.R. No. 127685 July 23, 1998]. 

This right does not distinguish between the phrases accused and respondent

The specific search that we are concerned here is the unreasonable search on one’s person and papers in relation to the process of preliminary investigation. 

A person with reasonable expectation of privacy can only be searched by virtue of a judicial warrant of arrest or in exceptional circumstances [see G.R. No. 182178, August 15, 2011]. 

The right is against unreasonable searches of whatever nature and for any purpose

If the purpose of the preliminary investigation is to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial [Rule 112, Sec. 1], surely this right is available because it is against unreasonable searches for any purpose

If the nature of the preliminary investigation is to investigate crimes and prosecutes offenders, this right is available because it is against unreasonable searches of whatever nature

This begs the question: is preliminary investigation unreasonable such that one can invoke his search rights against the preliminary investigation? 

The answer should be yes. 

If it’s the DOJ’s job to investigate the commission of crimes and prosecute offenders – – and theirs alone – – it is unreasonable to suddenly ask a person investigated, who has the right to be left alone and to privacy, nor even forced by way of subpoena, to participate, or help, the DOJ determine whether or not there is a sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. 

Too, if you are presumed innocent, it is unreasonable to be forced or even asked to participate in a preliminary investigation that may bring about the filing of accusation against you in criminal court. 

By force of subpoena, according to Sec. 3 of Rule 112, it seems a person is being forced to waive his expectation of privacy to his person and papers and is thereby being subjected to unreasonable search of his person and papers; 

“Section 3.      Procedure. — The preliminary investigation shall be conducted in the following manner: 

. . . 

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. 

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. 

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.”

 

It is one thing to subpoena a person as a witness who is competent and compellable (or not disqualified) and it is another thing to subpoena a person who is being charged by an offence

If there is a value to this constitutional right or if indeed it is inviolable [read: unbreakable] to be secure in one’s persons, and papers, against unreasonable searches of whatever nature and for any purpose except upon a judicial search warrant, the process in the preliminary investigation when the respondent is subpoenad to submit his counter-affidavit [and that of his witnesses and other supporting documents relied upon for his defense] is not respecting this constitutional right. 

Again, one would say that Sec. 3[d] Rule 112 does not actually force you because Sec. 3[d] provides that “if the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant”. This argument is best answered by a question “so why use the force of subpoena?” which as discussed above has a chilling effect. 

The preliminary investigation’s, direct or indirect, violation of the constitutional right against unreasonable search triggers another constitutional right that any evidence obtained in violation of this right shall be inadmissible for any purpose in any proceeding [Sec. 3[2], Art 3, Constitution]. Repeat: for any purpose and in any proceeding. The effect is that any affidavits and supporting documents submitted by the respondent in the preliminary investigation stage should be inadmissible for any purpose in any proceeding [Sec. 3[2], Art 3, Constitution]. 

 

3. Right to remain silent

Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent [Sec. 12(1), Article 3]. This right is two-pronged: the right to be informed of your right to remain silent, and the right to remain silent. 

In Morales v. Enrile G.R. No. L-61016 April 26, 1983, this right is “straight-jacketed”, for lack of better term, to custodial investigation; 

“At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means-by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.” 

We will only deal with the second prong: the right to remain silent.

There is no question that, as the prosecution arm of the Philippines, the DOJ investigates the commission of crimes, and prosecutes offenders [1987 Administrative Code under Chapter I, Title III, Book IV].

If the police is required to respect the right to remain silent of the person in a custodial investigation process, the DOJ should also respect this right to remain silent in its preliminary investigation process. 

The police and DOJ are cut from the same cloth: they are one team in the criminal justice system, they investigate the commission of crime and prosecute offenders. 

Are there instances when the DOJ prosecutes a criminal case against someone but the police defends or helps defend that person from the offence being charged by the DOJ? 

If the answer is in the negative, same as the right to remain silent in custodial investigation, the person being charged with an offence by the filing of complaint should have a right to remain silent in the preliminary investigation process. 

Therefore, again: by force of subpoena, according to Sec. 3 of Rule 112, it seems the constitutional right to remain silent is being infringed by the rule on preliminary investigation, viz; 

“Section 3.      Procedure. — The preliminary investigation shall be conducted in the following manner: 

. . . 

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.” 

If it’s the DOJ’s job to investigate the commission of crimes and prosecute offenders, the respondent, who has a right to remain silent, should not be asked, nor even forced by way of subpoena, to participate, or help, the DOJ determine whether or not there is a sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

 

Preliminary investigation for a lawfully arrested person 

Sec. 3 of Rule 112 presupposes that the person charged with the commission of offence has not yet been arrested. The arrested person’s situation is no more better than the one not yet arrested. If lawfully arrested, Sec. 7, Rule 112 provides; 

“Section 7.      When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. 

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. 

After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.” [emphasis supplied] 

The person arrested may ask for a preliminary investigation but only if he signs a waiver of the provisions of Article 125 of the Revised Penal Code. This article 125 mandates the arresting officer to deliver the lawfully arrested person to the proper judicial authorities within a given period: failure to deliver means the arresting officer is committing an offense. 

Upon signing of waiver, the preliminary investigation process follows the steps in Rule 112 as discussed above. Thus, to a lawfully arrested person, the steps are; 

  1. Lawful arrest.
  2. Signing of waiver of Art. 125. [But note, article 125 is a criminal offence. The question of whether or not a private person’s (the lawfully arrested person) written waiver of criminal offence is one of the modes of extinguishing public criminal liability or action ie., whether prosecution for violation of criminal provision Art. 125 can be extinguished by a private person, is for another day].
  3. Violation of his 3 constitutional rights by Rule 112, Sec. 3[c] and 3[e] of the preliminary investigation process.

 

It is not an answer that the lawfully arrested person himself asked for the preliminary investigation because the conduct of the preliminary investigation, as currently worded, infringes these 3 rights. 

 

Complaint or information in court without a preliminary investigation 

In the case of the complaint or information filed in court without a preliminary investigation, the situation is no different. The 3 constitutional rights of the person charged with an offence will still be violated because if he asks for a preliminary investigation, the same Rule 112, Sec. 3[c] and 3[e] of the preliminary investigation process will be followed. 

 

The rule on preliminary investigation was adopted and promulgated not by the DOJ or Ombudsman 

The DOJ and Ombudsman cannot be faulted for this seeming violations of 3 rights because the rule of preliminary investigation was, pursuant to the provisions of section 5 (5) of Article 8 of the Constitution, adopted and promulgated by the Supreme Court of the Philippines. 

The section 5(5) power of the Supreme Court reads;

“Section 5. The Supreme Court shall have the following powers: 

. . . 

5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”

 

But looking at Rule 112, Sec. 3[c] and 3[e], the above 3 constitutional rights are not being protected and enforced: there may be instances when the results of the preliminary investigation favor the dismissal of the complaint, but the end does not justify the means if the means is unconstitutional. 

If the investigation of commission of crimes and prosecution of offenders are executive, and not judicial, functions, the question of the constitutionality of the some or all of the provisions of Rule 112 according to the principle of separation of powers is a question for another day. We can also look at the section 6 powers of the Supreme Court to have administrative supervision over all courts and court personnel that exclude the power of administration of investigation of crimes and prosecution of offenders which are executive functions. 

Going back to the subject: while there are situations where preliminary investigation is not required (Rule 112, Sec. 1), the current rules, Rule 112, Sec. 3[c] and 3[e], on preliminary investigation adopted by the Philippine Supreme Court, with respect, violates the 3 constitutional rights of a person charged with the commission of the offence. 

The remedy lies in leaving the respondent out of the picture, out of being mandatorily involved in the investigation process by the DOJ or Ombudsman, and/or from being subpoenad or required to submit his defence documents or forced to participate in the hearings of the DOJ or Ombudsman. Again, the sometimes very lucky situation that the result of preliminary investigation favors the dismissal of the complaint does not justify the means, or that the respondent has an option not to submit his defence documents will justify the issuance of subpoena.

The remedy is to amend the rules and to check the guardian of the separation of powers to check its power whether it can impose an investigation procedure to a co-equal branch of government performing an executive investigatory non-judicial power: of course, the forced participation [semi, pseudo, or full force, depending on how you view the chilling effect of subpoena] of respondent in the preliminary investigation is deeply and historically embedded in the legal tradition and rule in the Philippines just as there was no Miranda rule in the Philippines before.

Evidence & Speaking with the Media

So you decided to speak with the media to “give your side of the story” about an instance or situation or fact, but you are wondering whether this media mileage may or may not hunt you later on.

Among others, according to the Philippine Rules of Court and related jurisprudence, these are some of the things to keep in mind;

  • Take note that your statements to the media as to a relevant fact may be given in evidence against you [Rule 130, Sec. 26, Rules of Court]. 
  • Also remember the rule that “silence means yes”. The rules provide that “An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him” [Rule 130, Sec. 32].
  • If you are presented as a witness in court later on, be mindful of your former statement because you may be discredited if your past statement will be inconsistent with your would-be court testimony [Rule 132, Sec. 11] although there are certain preconditions before you can be discredited. 
  • Note that in a criminal case, the accused as a general rule has the right to have a court order issued to compel and secure your attendance as witness for such statement that maybe used in his defense [Rule 115, Sec. 1(g)].

Of course, if you are a lawyer you know that you are not to make public statements in the media regarding a pending case tending to arouse public opinion for or against a party [Rule 13.02, Canon].

Importantly, be mindful that nowadays minors have easy access to read, listen, or watch media publications.

Warrantless search of cellphone and/or its contents.

If you’ve been lawfully arrested, and you are in possession of a cellphone at the time of arrest, may the arresting officer legally search, without a warrant (ie., a warrantless search), your;

1. Cellphone; and/or

2. The contents of your cellphone including pictures, email, videos, and any and all data stored in your cellphone?

As a general rule, the Constitution requires that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding. (Art. 3, Sec. 2 and 3, Constitution)

While the Rules of Court provides that a “person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant” (Rule 126, Sec. 13, Criminal Procedure), a cellphone is not normally a dangerous weapon unless you used it or clearly intend to use it as such.

But even as a dangerous weapon, its contents or data is a separate issue which may not be searched without a judicial warrant.

Even if used to commit an offense, still its contents or data may not be searched without a judicial warrant.

Thus, while it may be legally possible to conduct warrantless search of a cellphone, the legality of searching without a judicial warrant the contents or data of a cellphone is another thing.

“Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the . . . protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.” (Justice Sharpe, in R v. Manley, 2011 ONCA 128, an Ontario caselaw)

If a search warrant has been issued on the contents, but you secured your cellphone with a password, the arresting/searching officer, even the Supreme Court, cannot (or should not) compel you to unlock your cellphone (Art. 3, Sec. 17, Philippine Constitution).

The giving of gifts to public officials and employees

Its the season of gift giving again.

However, the season should not be an excuse for corruption.

Our laws on corruption made it punishable to give gifts to public officials and employees, and for them to accept such gifts.

The old Presidential Decree No. 46 made it punishable for public officials and employees to receive gifts on any occasion including Christmas.

If you are a private person dealing with public officials and employees, PD No. 46 made it also punishable for you to give gifts to them on any occasion including Christmas.

This law made it “punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing to any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employees or his immediate relatives.”

For violation of this law, the penalty is imprisonment for not less than one (1) year nor more than five (5) years and perpetual disqualification from public office shall be imposed. The official or employee concerned shall likewise be subject to administrative disciplinary action and, if found guilty, shall be meted out the penalty of suspension or removal, depending on the seriousness of the offense.

Section 7(d) of RA 6713 also made it unlawful to solicit or accept gifts. This law provides that public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.

The penal code as well as the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) also contain similar provisions.

Corruption in any form and in any season is still corruption.  If you, or your company, or your employer give gifts to public officials and employees during Christmas, you or your company or employer are contributing to corruption in the Philippines.

If you are a public official or employee and is contemplating to accept such gifts, ask yourself whether these gifts are the ones that you will share to your family and friends during Christmas dinner or the gifts that you’d be thankful for. If the gift is a food or a food basket of goodies, ask yourself whether you want your family and children to eat what the law looks upon as fruits of corruption.

Ask yourself whether the alms received by the beggar in the street and shared with his family and children is much and way better than the gifts you received because his came from his day’s hard work without strings while yours is a corruption gift beautifully wrapped by the giver because of the favors he will ask and you may give, all in all contributing to Philippine corruption.

If you have joined rallies and marches because you were or are against corruption but you have previously given Christmas gifts to public officials and employees, ask yourself whether you have been part of the system of corruption you are against with and have contributed to the growth of corruption because of the gifts that you gave.

If you are contemplating to give gifts, ask whether you are planting another seed of tree in the corruption forest. Ask whether the relationship between those persons who might be involved in pork barrel corruption started because of gift giving leading to grant and exchange of favors.

It is the season of giving but it should not be a season of corruption. If you want to give gifts, there are many charitable institutions that will need your gifts or you can visit those in seniors home or home for the aged. If you are the public official or employee, be contended with what you have and those coming from your good labors – – then you will have a merry heart that you have not allowed yourself to be corrupted or allowed your family and children to share fruits of corruption.

Merry Christmas and Happy Holidays.

Criminal defense of someone you believe to be guilty

What is it like to be the defense attorney of someone you strongly believe to have committed the crime?

“(A) lot better than being the defense attorney of someone you strongly believe did not commit the crime.

Representing the guilty is pretty straightforward. The burden is on the government to prove their case beyond a reasonable doubt. If your client tells you they committed the act, you look for an affirmative defense (e.g. self defense) that is supported by the evidence. If they haven’t admitted the act to you, then you do your best to hold the government to its proof by impeaching its witnesses, questioning the foundations of its evidence and arguing against the inferences being made.

Representing the innocent, however, is completely different. In addition to the above, you also have a constant gnawing at you that no matter what you do, it isn’t going to be enough. The burden has shifted to you to prove their innocence, and it is much, much harder to prove a negative (e.g. someone didn’t do something) than it is to prove someone did something. The case will easily consume you, trumping everything else in your life because someone you have become convinced is truly innocent is at risk of going to prison or facing the death penalty and you are the only one that can prevent it.

If they are convicted, you then get the pleasure of trying to go to sleep each night knowing that if you had just done a little bit more, perhaps asked a different question of a witness or spent just a few more hours digging through documents looking for exhibits, the outcome would have been different and the innocent would be free. It becomes your fault that the innocent person is in prison, even though you did all you could to prevent it. You should have done more. Why didn’t you do more? What could possibly have been more important than that? The case gnaws at you for months, years even decades and becomes one of the things that you will never, ever forget.” (T. Critelli, Esq. / Quora)