The right to counsel attaches upon the start of the investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JERRY PEPINO y RUERAS and PRECIOSA GOMEZ y CAMPOS, Accused-Appellants. EN BANC, G.R. No. 174471, January 12, 2016.

c. The Right to Counsel

The right to counsel is a fundamental right and is intended to preclude the slightest coercion that would lead the accused to admit something false. The right to counsel attaches upon the start of the investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused.46

Custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation.47 As a rule, a police lineup is not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. The right to be assisted by counsel attaches only during custodial investigation and cannot be claimed by the accused during identification in a police lineup.

Our ruling on this point in People v. Lara48 is instructive:

x x x The guarantees of Sec. 12(1 ), Art. III of the 1987 Constitution, or the so-called Miranda rights, may be invoked only by a person while he is under custodial investigation. Custodial investigation starts when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. Police line-up is not part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage.49

Defense witness Reynaldo, however, maintained that Pepino and Gomez were among those already presented to the media as kidnapping suspects by the DOJ a day before the police lineup was made. In this sense, the appellants were already the focus of the police and were thus deemed to be already under custodial investigation when the out-of-court identification was conducted.

Nonetheless, the defense did not object to the in-court identification for having been tainted by an irregular out-of-court identification in a police lineup. They focused, instead, on the legality of the appellants' arrests.

Whether Edward and Jocelyn could have seen Pepino and Gomez in various media fora that reported the presentation of the kidnapping suspects to the media is not for the Court to speculate on. The records merely show that when defense counsel, Atty. Caesar Esturco, asked Jocelyn during cross-examination whether she was aware that there were several kidnap-for-ransom incidents in Metro Manila, the latter answered that she "can read in the newspapers."50 At no time did Jocelyn or Edward ever mention that they saw the appellants from the news reports in print or on television.

At any rate, the appellants' respective convictions in this case were based on an independent in-court identification made by Edward and Jocelyn, and not on the out-of-court identification during the police lineup. We reiterate that the RTC and the CA found the court testimonies of these witnesses to be positive and credible, and that there was no showing that their factual findings had been arrived at arbitrarily. The in-court identification thus cured whatever irregularity might have attended the police lineup.

As the Court ruled in People v. Algarme:51

Even assuming arguendo the appellants' out-of-court identification was defective, their subsequent identification in court cured any flaw that may have initially attended it. We emphasize that the "inadmissibility of a police lineup identification x x x should not necessarily foreclose the admissibility of an independent in-court identification." We also stress that all the accused-appellants were positively identified by the prosecution eyewitnesses during the trial.

It is also significant to note that despite the overwhelming evidence adduced by the prosecution, Pepino and Gomez did not even testify for their respective defenses.1âwphi1

X x x.”