Right to counsel

1. During custodial investigation at the Western Police District, Mario Margal was informed of his
constitutional right to remain silent and to have competent and independent counsel. He decided to waive his right
to counsel and proceeded to make statement admitting commission of a robbery. In the same statement, he
implicated Antonio Carreon, his co-conspirator in the crime.
a) Is Margal’s statement admissible in evidence against him?

Answer:
No, because under the Constitution, the right of Margal to remain silent and to counsel during
custodial investigation cannot be waived except in writing and in the presence of counsel, and any
confession or admission in violation of this provision is inadmissible in evidence against him.

b) Is it admissible against Carreon as an exception to the res inter alios acta rule? (1991, #13)

Answer:
No, because even assuming that conspiracy is shown by evidence other than the statement of
Margal, the statement was made after the conspiracy had ceased.

2. Felipe Arenas, an employee of ABC Corp., appeared to be involved in irregularities in the sale of the
corporation’s products. He was asked to account for some undeclared sales amounting to P150,000.00 and, for that
purpose, he was asked to appear on a specified date at an administrative investigation, to be conducted in
accordance with the corporation’s collective bargaining agreement with the employee’s union. Two (2) days before
the scheduled investigation, Arenas gave to his superiors a signed handwritten note stating that he was willing to
settle the irregularities allegedly charged against him in the amount of P150,000.00 subject to conditions which the
corporations may impose. On the day of the investigation, Arenas did not show up and has failed to report for work
since then. The corporation charged with estafa. At the trial, the prosecution offered in evidence the aforesaid
handwritten note as Exhibit “A”. The defense counsel objected to the admission of the note on the ground that the
same was executed without the accused having been informed of his constitutional right to remain silent and to have
counsel nor was he then assisted by counsel. If you were the judge, would you admit the evidence?(1991, # 14)

Answer:
Yes, the signed handwritten note of Arenas, given two days before the scheduled
administrative investigations, is admissible in evidence against him, because he was not under custodial
investigation when he executed the same. Hence, the constitutional right to remain silent and to have
counsel was not applicable to him.

3. The Barangay captain reported to the police that X was illegally keeping in his house in the Barangay an
armalite M 16 rifle. On the strength of that information, the police conducted a search of the house of X and indeed
found said rifle. The police raiders seized the rifle and brought X to the police station. During the investigation, he
voluntarily signed a sworn statement that he was possessing said rifle without license or authority to possess, and a
waiver of right to counsel. During the trial of X for illegal possession of firearm, the prosecution submitted in
evidence the rifle, sworn statement and waiver of right to counsel. Individually rule on the admissibility in evidence
of the:
a) Sworn statement
Answer:
The sworn statement is not admissible in evidence because it was taken without informing him of
his custodial rights and without the assistance of counsel which should be independent and competent
and preferably of the choice of the accused.

b) Waiver of right to counsel of X (1998, #17)

Answer:
The waiver of his right to counsel is not admissible because it was made without the assistance of
counsel of his choice.
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4. a) If the accused on the witness stand repeats his earlier uncounseled extra-judicial confession
implicating his co-accused in the crime charged, is that testimony admissible in evidence against the latter?
Answer:
Yes. The accused can testify by repeating his earlier uncounseled extra-judicial confession,
because he can be subjected to cross-examination.

b) What is the probative value of a witness’ Affidavit of Recantation? (1998, #19)

Answer:
On the probative value of an affidavit of recantation, courts look with disfavor upon recantation
because they can easily be secured from witnesses, usually through intimidation or for a monetary
consideration. Recanted testimony is exceedingly unrealiable. There is always the probability that it will
be repudiated.

5. During the custodial investigation of Jose Zafra, a murder suspect, he was informed of his rights to be
assisted by counsel, among other constitutional rights. Zafra requested the assistance of Atty. Donato Saldi who
was present when Zafra gave his confession. When the case for murder was filed against him, Zafra objected to the
admission of his confession on the ground that he had inadequate assistance of counsel as Atty. Saldi did not advise
him to remain silent during the investigation.
Is the said objection tenable? Explain your answer. (1990, #14)

Answer:
No, because Jose Zafra was already informed of his right to be assisted by counsel, among other
constitutional rights which include the right to remain silent. Atty. Saldi had no obligation to advise him
to remain silent during his investigation.

JB was charged with murder. During the investigation of his case by the police, he was made
to sign a confession against his will. In said confession, he declared that the bolo used by him in
hacking to death the victim MS was buried by him under an avocado tree in the yard of his house
and that the clothes JB was wearing at the time was stained with blood of the victim; that he
wrapped his clothes in a newspaper and kept it in a storeroom under his house. Upon verification by
the police investigators, true to the confessions of JL, the bolo was found buried under the
avocado tree indicated by the accused and his clothes stained with blood in a bodega under the
house wrapped in a newspaper. Is the confession of JL, obtained by third degree, admissible in
evidence, considering that his admissions were proven to be true? May JL be convicted on the basis
of said evidence? Reason. (1976, #6)
Answer:
No, inasmuch as the confession was involuntary, it is inadmissible in evidence whether
obtained before or after the effectivity of the New Constitution and, hence JL may not be
convicted on the basis of said evidence.