PRESENTATION OF EVIDENCE
1. Rule 132 governs the manner by which Testimonial and Documentary evidences are to be presented in Court.
2. Principles in the presentation of evidence by the parties:
a). A case is won or lost depending upon how effective was the presentation of evidence, particularly as to what evidence were presented and how they were presented
b). Parties should be allowed a certain latitude in the presentation of their evidence otherwise they might be so hampered that the ends of justice may eventually be defeated or appear to be defeated. The court should not limit the evidence to be presented.
c). The parties should be allowed to maintain their own way or style of presenting evidence when these can be done without injury to the speedy disposition of the case and to the best interest of the administration of justice
d) The court should liberally receive all evidence offered in the trial to be able to render its decision with all the possibly relevant proof in the record and to assure the appellate court to have a good judgment and to obviate remanding the case for re-trial or reception of evidence
Section 1. Provides the manner of presenting testimonial evidence to be as follows:
By presenting the witness personally in open court
a). The witness must appear in person so that the court and the opponent may observe him and hear his testimony
b). His personal presence cannot be substituted by the submission of written statements or audio testimony
c) There is also no secret testimony and it must always be in the presence of the adverse party, except when the presentation is allowed to be ex parte, or testimony through interrogatories or depositions in advance of trial before a hearing officer but upon prior approval of the court and with proper notice to the adverse party
d). CHILD WITNESSES: the witness may testify inside a room but the child must be visible and can be heard through the medium of facilities appropriate for the purpose such as a mirror
QUESTION: May the witness testify wearing masks to preserve his identity?
To be examined under oath or affirmation
a). To answer questions as may be asked by the proponent, the opponent and by the court
(i). Oath: an outward pledge by the witness that his testimony is made under an immediate sense of responsibility to a Supreme Being. An appeal is made to the almighty that he will tell the truth.
(ii.) Affirmation: a solemn and formal declaration that the witness will be truthful
iii). The purpose of an oath or affirmation are : (i) to affect the conscience of the witness and compel him to speak the truth and (ii) to lay him open to punishment for perjury. But it is not essential that he knows what or how he will punished.
iv). If the opponent believes the witness is not aware of his obligation and responsibility to tell the truth and consequences of telling a lie, the party may ask for leave to conduct a VOIRE DIRE examination ( PP. vs. Alma Bisda, July 17, 2003)
v). Effect of lack of oath: If the opponent fails to object then the testimony may be given weight as the party would be estopped or, the party may move to disallow the witness from testifying, or move to strike the testimony after he found the lack of oath. The proponent however may ask that the witness be placed under oath. . .
The form of testimony must be :
a). Oral answers to questions unless (i) the question calls for a different form of answer such as by bodily movements or demonstrable actions, (ii) or the witness is a deaf mute (iii) in case of a child witness
b) Not in a narrative (i) in order to prevent the witness from testifying and narrating facts which are irrelevant and thus he will testify straight to the point in issue, as well as (ii) to give the opponent an opportunity to raise an objection.
Sec. 2. The Proceedings must be recorded.
Courts of the Philippines are courts of record. Anything not recorded is deemed not to have transpired or taken-up and will not be considered in the resolution of the case. The matter to be recorded include:
a). Questions by the proponent, opponent and the court, which are propounded to the witness
b). The answers of the witness to the questions
c). Manifestations, arguments, and statements of counsel
d). Statements of the court to the counsel
e). Instructions or statements of the court to the court personnel
f). Demonstrable actions, movements, gestures or observations asked to be described and recorded
g). Observations during the conduct of ocular inspections
Matters not recorded:
Statements which were ordered or requested to be stricken from the record such as those which are improper, irrelevant or objectionable. Example: hearsay direct testimony
Sec. 3. Rights and Obligations of Witnesses
The obligation of a witness is to answers all questions which are asked of him. He cannot choose which questions to answer and to answering others.
The witness however has the right to be protected against tactics from the opponent which are intended to “brow beat, badger, insult, intimidate, or harass him”.
He has the right not to be detained longer that is necessary.
He may refuse to answer the following questions:
a). Those which are not pertinent to the issue
b). Those which are self-incriminatory except in the following cases:
(i) where the accused is testifying as a witness in his own behalf, as to questions relating only to the offense upon which he is testifying
(ii) where the witness was granted immunity from prosecution as when he is under the Witness Protection Program or was discharged to be used a s a state witness, or he is a government witness in Anti-Graft Cases.
c). Those which are self-degrading, unless it is to discredit the witness by impeaching his moral character
EXAMINATION OF A WITNESS
A. INTRODUCTION: Meaning of terms:
1. “Examination” – to find out facts from the witness or to test his memory, truthfulness or credibility by directing him to answer appropriate questions.
2. Proponent - the party who owns or who called the witness to testify in his favor. Opponent- the party against whom the witness was called.
3. Friendly Witness- one who is expected to give testimony favorable to the party who called for him. Hostile Witness, one whose testimony is not favorable to the cause of the party who called him as a witness. Party witness and accused-witness refer to the plaintiff, defendant or the accused, testifying as witness for themselves, as opposed to ordinary witnesses
B. ORDER OF EXAMINATION
Direct examination by the proponent
Cross-examination by the opponent
Re-direct examination by the proponent
Re-cross examination by the opponent
C. ORDER OF PRESENTATION OF EVIDENCE
Presentation of Evidence in Chief by the Plaintiff
Presentation of Evidence in Chief by the Defendant
Presentation of Rebuttal Evidence by the Plaintiff
Presentation of Sur rebuttal Evidence by the Defendant
Section 5. Direct Examination. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.
A. Procedural Requirement
Offer of Testimony- the proponent shall state the substance of the intended testimony of the witness ( an outline of the major points) and the purpose of said testimony ( what the proponent intends to prove by said testimony)
a). Importance of the Offer- (i) The direct examination may be objected to by the opponent (ii) Matters not included in the offer may not be allowed to be testified on upon proper objection and (iii) to shorten the proceedings as the opponent may admit or stipulate on the matters to be testified on.
In cases under the Rules on Summary Procedure, the sworn statement of the witness must have been submitted to the court before hand
B. Importance of the Direct Examination
This is the only opportunity for the proponent to elicit from the witness all the facts which are important and favorable to him. The witness should be considered as a sponge heavy with facts. By the time the direct examination is over, all favorable facts should have been squeezed from the witness. The examination must be clear, forceful, comprehensive, and must efficiently present the facts of the case.
Effective Direct Examination
a). KEEP IT SIMPLE. Avoid these two pitfalls (i) too little time on critical points and (ii) too much time on unimportant points
b). ORGANIZE LOGICALLY. Determine the key points and organize them in a logical order. If possible resort to a chronological presentation of testimony.
c). INTRODUCE THE WITNESS AND DEVELOP HIS BACKGROUND
d). USE PRELIMINARY QUESTIONS WHICH ARE INTRODUCTORY, TRANSITION OR ORIENTING QUESTIONS
e). ELICIT SCENE DESCRIPTION
f). ELICIT GENERAL FLOWING DESCRIPTION. Let the witness paint a picture. Avoid excessive detail.
g). USE PACE IN DESCRIBING ACTION. Control the speed of the examination by eliciting testimony in small segments at the most advantageous rate. SLOW DOWN THE ACTION.
h). USE SIMPLE LANGUAGE. Choose simple words and phrases. Word choice affects answers. Avoid jargons, idioms and technical words. WHAT MATTERS AND WHAT WILL BE REMEMBERED IS NOT HOW BEAUTIFUL AND IMPRESSIVE THE LAWYER PHRASED HIS QUESTIONS BUT WHAT THE WITNESS NARRATED.
i). HAVE THE WITNESS EXPLAIN.
j). USE NONLEADING OPEN-ENDED QUESTIONS
k). USE EXHIBITS TO HIGHLIGH AND SUMMARIZE
l). PRACTICE WITH THE WITNESS.
Sec. 6. Cross Examination.
A. Concept: The examination of the witness by the opponent after the direct examination.
1. An essential part of the right to procedural due process i.e. the right of a party to confront witnesses against him face-to-face. The essence however is not actual cross examination but that a party be given the opportunity to cross examine. Hence the consequences are as follows:
a). If the opponent was never given the opportunity to cross examine a witness, the direct testimony may, on motion of the opponent, be stricken off as hearsay.
b). All assertions of facts not based on the personal knowledge of the witness may also be stricken off as hearsay since the source cannot be subjected to the opportunity of cross-examination
a). The right may however be waived expressly
b). It may be lost through the fault or negligence of the opponent.
c). After a witness has been cross-examined and discharged, further cross-examination is no longer a right but must be addressed to the sound discretion of the court
d). The Court may limit the cross-examination if its needlessly protracted, or is being conducted in a manner which is unfair to the witness or is inconsistent with the decorum of the court, as when it degenerates into a shouting match with the witness
3. Effect of the Loss or non-completion of the cross examination
a). If the loss, in whole or in part, was due to the fault of the adverse party, the testimony of the witness is to be taken into consideration
b). If the cross-examination cannot be done or completed due to causes attributable to the party offering the witness, the testimony is rendered incompetent
c). If the loss or –non-completion was due to the death or unavailability of the witness then that part of the testimony which was subjected to cross-examination remains admissible.
4. Character of Cross Examination: It is both an Art and a Science
a). It is an Art because it requires consummate skill which is acquired and developed. There is no standard method as it is highly personalized, subjective and be adaptive to who the witness is and to the subject of the cross examination. The length, style of questioning or approach to a witness requires intuition and understanding of human nature; of the habits, weaknesses, bias and prejudices of people; their reactions to situations, their perception of matters, and such other factors that vary according to circumstances of time, place, people and occasions.
It requires the ability to think quickly, read quickly and to know when to quit. The lawyer’s antennae must ever be tuned in to the witness: his character, personality; mannerism, and all traits which will give a favorable clue; to the adverse counsel and to the Court.
b). Should a party cross examine or not depends on a full understanding of what to expect. The following must be considered before a party attempts to cross-examine:
i). Whether the witness has hurt the case or the impact of his testimony on the case
ii). Whether the witness is important, as for example an eye witness, or a party witness
iii). Whether the testimony is credible
iv). The risks that the party undertakes
2. It is a science. It requires a thorough preparation and mastery of certain rules/jurisprudence on procedure in the presentation of evidence.
C. Importance and Purpose of Cross Examination
Cross examination is both a weapon to destroy or weaken the testimony of the opponent’s witness and a tool to build up or strengthen a party’s case. The conduct of cross-examination must always be directed towards achieving a specific purpose or purposes.
Constructive Cross-Examination, where the purposes are: (a) to amplify or expand the story of the witness so as to place the facts in a different light which is favorable to the party. Note that the witness of the opponent seldom volunteer facts favorable to the cross-examiner, hence the manner of questioning should be “insinuating”, and (b) To obtain favorable or establish additional facts favorable to the cross-examining party.
Destructive Cross-Examination The purposes are: (a) to discredit the testimony of the witness by showing its absurdity, or that it is unbelievable or contrary to the evidence (b) To discredit the witness by showing his bias, interest, lapse of or selective memory, incorrect or incomplete observation of event, and similar situations.
D. Scope of Cross Examination
1. Under section 6 the witness may be examined: (a) As to any matter stated in the direct examination (b) or any matter connected therewith (c) as to the accuracy and truthfulness and freedom of the witness from interest or bias, or the reverse and (d) upon all important facts bearing upon the issue.
2. The English Rule is followed in the Philippines: the cross examination is not confined to matters subject of the direct examination but extends to other maters, even if not inquired in the direct examination but are material to the issues. This is distinguished from the American Rule which holds that the scope of the cross-examination is confined to the facts and circumstances brought out, or connected with, matters stated in the direct examination
D. Questioning by the Court:
1. The Court may ask questions : 1. To clarify itself on certain points 2. To call the attention of counsel to points at issue that are overlooked and 3.To direct counsel to questions on matters to elicit facts and clarify ambiguous answers
2. However, the questioning by the court should not be confrontational, probing and insinuating. It should not be partisan and not over extensive. The court is not to assume the role of an advocate or prosecutor.
BASIC RULES ON CROSS EXAMINATION
1. PREPARE. Know what the witness has testified on and its relation to the case and how it affects your own evidence
2. KNOW YOUR OBJECTIVE. What are the points in the testimony of the witness which are critical and are these points to be brought out and emphasized
3. OBSERVE PACING AND PATIENCE . Do not rush the witness and avoid being over eager in bringing out an important point.
4. LEAD THE WITNESS. State the facts and let the witness ratify. Know how to lead. Use variation in the phraseology of the questions.
5. HAVE A STYLE AND ADAPT IT TO THE OCCASION. Be true to yourself and develop an approach or style suited to your personality and character. Be able to vary your style and know when is it effective to use either a booming or soft voice; to move around or to stay put; to be conversational or confrontational or tough and confident..
6. KNOW WHEN TO QUIT. Stop when (1) the witness has been discredited or made a monumental concession. There is no need for an over kill. or when the witness is killing the case or the counsel.
7. KNOW WHAT MATERIALS TO TAKE TO CONFRONT THE WITNESS. Have them be ready and easily accessible.
8. KNOW THE JUDGE. Are you making an impact or are you boring, antagonizing or confusing the Judge?
9. KNOW THE RULES OF EVIDENCE
ADDITIONAL PRACTICAL TIPS
1. BE BRIEF. Confine to the strongest points.
2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax.
3. NEVER ASK A QUESTION to which you do not already know the answer.
4. LISTEN TO THE WITNESS. Tune in if he was contradicted by another witness or prior testimony; is the testimony contrary to human experience or completely inconsistent with nature.
5. DO NOT QUARREL WITH THE WITNESS.
6. DO NOT PERMIT THE WITNESS TO EXPLAIN
7. DO NOT REPEAT HIS TESTIMONY ON DIRECT.
8. AVOID QUESTIONS TOO MANY
9. SAVE THE EXPLANATION FOR THE MEMORANDUM. Questions should not be explanations of your position.
Sec. 7. Redirect Examination by the proponent
A. Purpose and Scope:
To afford the party calling the witness to explain or amplify the testimony given on cross-examination; to explain apparent contradictions, or inconsistencies, and to rehabilitate the testimony.
The scope is confined to matters taken up in the cross-examination, not those outside, which may be objected to on the ground that it is improper for redirect.
But, new matter may be inquired into provide the prior approval of the court was obtained and the testimony on the new matter must be subject to cross-examination by the opponent.
Sec. 8. Re-cross examination by the opponent.
A This is confined to matters subject of the re-direct examination.
Sec. 9. Recalling Witnesses.
A. On Motion By a party: This is not a right but the recall must be addressed to the discretion of the court and the recall must be on justifiable grounds.
B. By the Court: If there be matter it wishes to clarify
Sec. 10. Leading and Misleading Questions.
A. Introduction. The examination of a witness is by asking questions the answers to which will bring out facts from the witnesses. However a lawyer is subject to certain rules such as to what questions he is allowed to ask, how they are to be phrased or worded so that facts known only to the witness through his own perception are revealed, or so that facts which are suppressed or forgotten may be forced out from the witness.
Some of these limitations consist of the prohibition on leading and misleading questions.
B. Leading Questions. Section 10 defines it as a “A question which suggest to the witness the answer which the examining party desires”. It is also known as “Suggestive Question”.
1. Witnesses are to give data spontaneously from there own memory, according to their own perception and interpretation. The role of the lawyer is simply to ask questions which will help the witness recall events. The question should be framed in such a manner that the lawyer does not in any way suggest or influence the answer to be given, otherwise the fact or answer becomes merely the product of the suggestion, and not what the witness personally knows.
2. If the witness is asked simply to confirm or deny, then in effect it is the lawyer who is supplying the facts through the mouth of the witness who is reduced to being merely the echo and mouthpiece of the lawyer.
3. Test : The form or phraseology and the contents of the question in that whether it contains a statement of a fact which the witness is asked to affirm or agree to. In such case the witness contributes no substantial data. The lawyer is coaxing.
The tone, inflection, mannerism or body language of counsel, may also indicate if the counsel is leading his witness.
C. General Rule On Direct: The witness being a friendly witness and having been called by the proponent, he is naturally expected to be sympathetic to the cause of the proponent. Thus there is great danger that he would just confirm any and all facts suggested to him by the proponent. Hence leading questions are not allowed.
The following instances are the exceptions when leading questions are allowed to be asked during direct:
On preliminary matters
a. those pertaining to the personal circumstances of the witness and which are asked at the start of the cross-examination
b. those which are intended to bring the witness directly to the point in issue; they are referred to as “orienting, introductory or transitory questions”
When there is difficulty in getting direct and intelligible answers from the witness who by reason of the any of the following:” is immature; aged and infirm; in bad physical condition; ignorant of, or unaccustomed to, court proceedings; inexperienced; unsophisticated; feebleminded; confused and agitated; terrified; timid or embarrassed while on the stand; lacking in comprehension of questions or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith” ( PP. vs. Dela Cruz, July 11, 2002)
is suffering from some mental deficiency, or where the intelligence of the witnesses is impaired, thereby making necessary the making of suggestions:
For example: witnesses who are ignorant, feeble minded deaf-mutes, minors or uneducated
In case of unwilling or hostile witnesses: they are uncooperative and will not readily supply the facts desired by the examiner. The approach to these witnesses is to conduct a direct examination as if it were a cross-examination
a. unwilling witnesses include (i) those who have to be compelled to testify by the coercive processes of the court (ii) or those who, at the time of their presentation at the witness stand, become evasive, reluctant or unfriendly
b. hostile-may refer to (i) a witness who manifest so much hostility and prejudice during the direct examination that the party who called him is allowed to cross-examine, i.e to treat him as if he had been called by the opposite party or (ii) one who surprises the party and unexpectedly turns against him
In either case, the party calling the witness must present proof of either adverse interest on the part of the witness, his unjustified reluctance, or of his misleading the party into calling him a witness, and on the basis of which the court shall declare the witness to be a hostile witness. Thereafter leading questions are asked.
In case the witness is the adverse party, or representative or officer of a juridical entity which is the adverse party. Said witnesses is expected to resist any attempt to obtain favorable data, hence the direct examination is in the nature of a cross-examination and the most effective manner of forcing favorable data, or of destroying his credibility, would be through leading questions
When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the case of subscribing witnesses to a will.
When the witness lacks the power of recollection a leading question is allowed in order to refresh the memory.
To identify persons or things.
In case of an expert witness as to his opinion.
D. Leading and Misleading Misleading Questions on Cross.
A. Rule on Leading Questions: During cross-examinations leading questions are allowed for the reason that the witness is not expected to be sympathetic to the cause of the opponent and would not volunteer important facts favorable to the opponent, or that he would resists to testify on facts adverse to the party who called him. Thus it becomes necessary that the opposing counsel has to force the facts from the witness thru leading questions.
The opponent states a fact favorable to him and forces the witness to confirm it.
B. Misleading Questions are not allowed. They are of two kinds:
1. A question which assumes a fact not yet testified to by a witness or still unproven or by putting words into the mouth of the witness
2. A question premised on a fact which is contrary to that testified to or proven or those which distort or do not accurately state the true facts. This is akin to twisting the words of the witness
A. Concept: The process of showing that a witness is not credible or that his testimony is not worthy of belief, i.e. casting doubt as to the credibility of the witness or credibility of his testimony. Note that credibility of the witness is different from credibility of testimony
B. Impeachment of the witness of the adverse party
Generally the witness may be impeached during his cross-examination or during the presentation of evidence by the party. Thus the witness of the plaintiff may be impeached at the time he is cross-examined by the defendant and/or during the presentation of evidence in chief by the defendant. On the other hand, the witness of the defendant may be impeached by the plaintiff during the cross examination of said witness and/or during the presentation of evidence during the rebuttal stage.
C. Specific Modes pursuant to section 11 and jurisprudence
1. By presenting evidence or facts which contradict the version of the witness
2. By proving the bad general reputation of the witness for truth or honesty or integrity.
a). He cannot be impeached by the direct testimony of witnesses of the adverse party as to particular instances of immoral acts, improper conduct, or other evidence of misconduct.
b). The person who is called by the adverse party to testify to the bad general reputation of the witness of the opponent is called the “Impeaching witness” who himself may also be impeached.
3. By proof of prior inconsistent statements in that a truthful person will be consistent with his statement even on different occasions and to different persons
4. By introducing evidence of his bias or interest, such as his relationship to a party, or financial gain as well as of his motive or intent.
5. By showing his social connections, occupations and manner of living in that he voluntarily associates with those who are engaged in disreputable activities, or if he is addicted to disgraceful or vicious practices, or follows an occupation which is loathsome and vile, even if not criminal, as all these affects his credibility.
6. By proof of prior conviction: the moral integrity of a person is placed in doubt by reason of a conviction for violation of the law, but not by the fact that there are pending cases against him
7. By showing the improbability of his testimony or that it is not in accordance with ordinary human experience. Example: (i) the claim of an accidental firing of a caliber gun is not believable because the mechanism of the gun which requires that pressure be applied on the trigger for the gun to fire (ii) the claim of four big able men having been attacked and mauled by one person who is who is much smaller in height and heft
8. By showing defects in his observation, or that he has a faulty or selective memory
9. By showing that this actions or conduct is inconsistent with his testimony.
Example: A rape victim was shown to have been partying with the alleged rapist after the rape
10. By engaging the witness in contradictions and discrepancies as to the material facts testified by him.
D. Impeachment of one’s own witness.
1. General Rule: It is not allowed pursuant to section 12. The reason is that a party calling a witness is supposed to vouch for the truthfulness of the witness and of his testimony, which he is assumed to know before hand, and is therefore bound by whatever the witness testifies to in court. A party is not permitted to let the witness be believed as to facts favorable to him, but to impeach him as to facts not favorable.
2. Exceptions: If the witness presented is any of the following:
a). An unwilling witness
b). He turns out to be a hostile witness or a treacherous witness and the party was mislead into calling him as a witness
c). An adverse party witness
E. Impeachment by Prior Inconsistent Statement.
1. The procedure or Laying the Foundations is outlined by section 13. To be effective the steps should follow the following sequence:
a). Recommit: Confront the witness with his prior statements narrating the circumstances of time, place, persons or occasion, or by showing him the prior written statement. Get the witness to affirm he made the statements
b). Build-Up. Let the witness affirm he made the prior statements freely, knowingly and that he stood by the accuracy and truthfulness of said statements
c). Contrast: Confront the witness by the fact that his prior statement contradicts or deviates or is materially different from his present statement
d). Demand an explanation why he made a different statement from his previous statements
2. Reason for the Procedure:
a). Fairness to the witness and avoid surprising him, so that he may recollect the facts, and to give him the opportunity to explain the reason, nature, circumstances, or meaning, of his statements. Example: He might have been too emotional then, or was improperly influenced, or wanted to avoid embarrassment, and similar reasons.
b). To save time if he admits his prior statements
3. Exceptions when there is no need to lay the foundation:
a). In case of statements made by a deceased which contradicts his dying declarations
b). If the contradictory statements are testified to by another person as an admission
Section 14. Exclusion and separation of witness.
A. Concept: The act of excluding a future witness from the court room at the time another witness is testifying or, of ordering that witnesses be kept separate from one another to prevent them from conversing with one another.
1. This is upon the court’s own motion or on motion of the adverse party.
2. A disobedient witness may be testify but his (a) testimony may be excluded or (b). his disobedience may be considered to affect his credibility and (c) he maybe punished for contempt of court
B. Purpose: To ensure the witnesses testify to the truth by preventing them from being influenced by the testimony of others; to prevent connivance or collusion among witnesses
(Note: the practical purpose of this rule is defeated by the reservations for cross examination or resetting to present another witness, such that the counsel and other witness have the opportunity to go over the testimony of the witnesses).
C. Who may not be excluded.
1. Parties to an action even if they are numerous.
a) In criminal cases, the presence of the accused is indispensable and he may not be excluded.
b). The private offended party should not also be excluded even if he will be a witness. As such he has a right to be present because it is his interest which is involved and also to assure that the proceedings are conducted properly. Besides he is party to the civil aspect of the case.
2. Expert witnesses as they testify to their opinions based on facts of their own knowledge, or on hypothetical facts
3. Witnesses on rebuttal
4. Character witnesses
5. Spectators unless they behave in a manner which is against the proper decorum of the court or when the evidence to be presented are sensitive
REVIVING THE MEMORY OF WITNESSES
A. Introduction: A witness may suffer from lapses of memory or loss of recollection as to material facts so that there is a need for him to recollect the facts. The remedy of reviving applies more appropriately to the adverse party conducting a cross-examination rather than to the proponent. The reasons are: (i) because a party presenting a witness is presumed to know what the witness is to testify on and is expected to have prepared him for the direct examination and (ii). matters favorable to the cross-examiner may have been forgotten by the witness.
B. Modes of reviving
1. By asking leading questions
2. By the Process of Association i.e. calling the attention of a person to a material connected with a certain event so it would trigger the brain to associate the material with the event and thereby enable the person to remember the event.
a). Presenting a pictorial representation of a person, thing, place, object or person
b). Playing the record of a conversation
c). Presenting physical objects such as trinkets, or other “memorabilia”
d). By allowing the witness to refer to a memorandum under section 16
Section 16. When witness may refer to a memorandum.
A. Two Methods of Revival under Section 16. (These are useful methods to the opposing counsel when conducting his cross examination. The proponent is supposed to have already gone over the testimony of his witness and briefed him hence, resorting to these methods reflect badly on the proponent).
1. Present Recollection Revived: the witness is presented the memorandum or record with the expectation that it will pull a switch in the brain and enable the witness to put aside the memorandum and testify on what he now recalls.
Thus the evidence is not the memorandum or writing but what the testify remembers as now testified
a). The written record/memorandum was written by him or by someone under his direction ( who wrote it?)
b). It was written at the time the fact/event occurred or immediately thereafter or at any time when the facts was still fresh in his mind ( when was it written?)
c). The record/memorandum is presented to the adverse party who may cross-examine on it, and it may be read into the evidence.
2. Past Recollection Recorded. The same procedure is followed but the witness is still unable to recollect the event but he can assert that the facts therein narrated are true. The evidence therefore is the writing itself.
3. Examples: (a). Filing clerks who record conversations then forget all about it (b) Diaries (c) Letters
Section 17. The Rule of Completeness.
A. Concept: When a part of an act, declaration or conversation, writing or record, is given in evidence by one party, the adverse party may : (i) ask or inquire into the whole or (b) introduce evidence on the remainder, and in case of writing he may have the other portion or even the entire writing be read in evidence.
As a matter of procedure, in case of documents already in court, a party merely underscores only those portions which are material to his case. It is for the opposing party to inquire as to the rest.
The other portions is limited to those which tend to qualify or explain the part first given and which were given at the same time.
1. As the issue is the nature of the transaction between the parties, where plaintiff presented his letter, it was proper for defendant to introduce all the other letters which passed between them
2. Where a letter is presented on direct examination, it is proper on cross to ask if there be any reply to it
3. Where a witness testified to the occurrence of a fight, it is proper to inquire on the antecedents and details thereof, past altercations between those involved or any bad blood between them
4. Where the Prosecution presented only a part of the records of the Preliminary Investigation, the defense may introduce the whole record
C. Need for Precision of Statements:
1. The general rule is that verbal accuracy is not required but the substance or effect of the actual words spoken will be sufficient so that the witness may testify to the substance as best as he can from his recollection
2. However, in case of oral defamation, there is a need for verbal accuracy
RULE ON EXAMINATION OF CHILD WITNESS
I. INTRODUCTION: The Supreme Court, in an en banc Resolution adopted the so called-Rule on Examination of a Child Witness which became effective on December 15, 2000. The rule applies to child witnesses who are victims of crimes, accused of a crime, and witnesses to a crime. It shall apply to criminal proceedings and non-criminal proceedings involving child witnesses.
A. Child Witness- any person who, at the time of giving testimony, is below the age of 18 years. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take car of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.
I. Creates a Presumption of Competency in favor of a child-witness subject to a Competency Test.
A. “Every child is presumed qualified to be a witness. However the court shall conduct a competency examination o a child moto proprio or on motion of a party, when it finds that substantial doubt exist regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court”. ( Sec. 6).
B. A party seeking a competency examination must present proof of necessity of competency examination. The age of a child shall not by itself is not a sufficient basis for a competency examination.
II. Allows the Court to, motu proprio or on motion, appoint certain persons to help in the testimony of the child-witness:
A. Guardian Ad Litem- a person to protect the best interest of the child whose appointment took into consideration his familiarity with the judicial process, social service programs, and child development. The parent if preferred, if qualified. Has the right to be present in all proceedings, to obtain copies of documents, interview witnesses, make recommendations to the court, and to do all to protect the child.
B. Interpreter- one, other than the regular court interpreter, whom the child can understands and who understands the child.
C. Facilitator- one who poses the questions to the child who may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative. Counsels shall pose questions only through the facilitator.
D. Support Person- person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support to the child
III. Contains Child Centered Provisions during the actual testimony such as :
A. A separate waiting area furnished to make the child comfortable
B. To create a more comfortable courtroom environment, the court may direct and supervise the location, movement, deportment of all person in the court room;
C. The child may testify from a place other than the witness chair; child is not required to look at the accused
D. To testify during the time of day that the child is well rested
E. Reasonable periods of relief is allowed as often as is necessary
F. The child is allowed to use testimonial aids, such as dolls, puppets, drawings, mannequins or any other appropriate devise to assist in the testimony of the child.
G. Child is allowed to have an Emotional Security Item of his own choosing as a blanket, toy, doll.
IV. Manner of Questioning and Objections
1. Leading Questions are allowed
specially des for Child-Directs
AUTHENTICATIONS AND PROOF OF DOCUMENTS
I. INTRODUCTION. Per section 2 of Rule 130, documents are writings or any material containing letters, words, symbols, numbers, figures, or other modes of written expressions offered as proof of their contents. They are either paper based or other solid surfaced based documents. These are what are referred to by Rule 132.
As to Electronic documents, the manner of their authentication is as provided for by the Electronics Evidence Law.
II. CLASSIFICATION OF DOCUMENTS.
A.. Section 19 provides that for purposes of their presentation in court they are either (i) public or (ii) private
Importance of the classification:
a) As to the need for authentication: public documents are admissible without further proof of their due execution whereas private documents must be authenticated
b). As to the persons bound: public documents are evidence even as against third persons as to the fact which gave rise to their execution whereas private documents bind only the parties thereto and their privies
c) As to the validity of certain transactions: certain transactions are required by law to be public documents in order to be valid and/or enforceable. E.g.: the law on donations of real properties, Statute of Frauds
B. Classification into Domestic and Foreign Public Documents
The following are public domestic documents:
a). Written Official acts of sovereign authority, official bodies, tribunals and public officers: such as decisions or courts or quasi-judicial bodies, legislative enactments, executive orders, directive from superior officers or memoranda, written appointments, warrants issued by court, subpoenae, ship’s log book
b). Record of the official acts of said bodies or officers: e.g: the marriage contract embodies the act of solemnizing a marriage; records of birth and death; written oaths; returns and reports, congressional records of the deliberations in congress
c). Acknowledged documents such as contracts and conveyances
d). Public record (i) kept in the Philippines of private writings (ii) or required by law to be kept therein. Example of the first would be documents affecting registered lands which are submitted to the Register of Deeds, Assessors Office, Letters of acknowledgement submitted to the Local Civil Registrar. Example of the second: Personal Bio Data or Information Sheets submitted to form part of the 201 File of government officials
A. Concept: As to documents, it is the process of proving that the document presented in court is not spurious, falsified, or questionable, or that it is not a different document. As to objects, it is the process of proving that the object presented in court is the very object involved in the case without any alteration or substitution.
B. Rule as to private documents: Section 20 provides that in order for a private document to be admissible, it is necessary to prove the “ due execution and authenticity of the document” in that it is not spurious, counterfeit or a different document. This is because private documents are not self-authenticating.
IV. How to prove a private document is authentic or genuine
A.. By direct evidence consisting of the testimony of witness such as (i) the parties to the document (ii) by an attesting /subscribing witness (iii) by a person who was present and saw its execution and (iv) by the person before whom it was executed and acknowledged
B. By proof or evidence of the genuiness of the handwriting or signature of the maker or of the parties thereto. It may be by any of the following:
1. Direct evidence consisting of the testimony of the maker or party affirming his own handwriting or signature
2. By the testimony of the attesting/subscribing witnesses or of witnesses to the execution thereof
3. By the use of “Opinion Evidence” pursuant to the Section 22 of Rule 131 such as (a) by one who has obtained sufficient familiarity (b) by an expert (c) based on a comparison with a genuine handwriting
4. By the contents of the document
5. By the style of writing
V. When Authentication Not Necessary
A. In case of ancient documents: referring to private document which are more than 30 years old, produced from a custody in which it would naturally be found in genuine and unblemished by nay alteration or circumstance of suspicion
1. The reason is the possible unavailability of witness due to the passage of time. Age is to be reckoned from the execution to the date it is offered
2. Requirements for “Ancient Documents”
(a) Proof of age: to be counted backwards from the time of offer to its date of execution
(b) Proof that on its face it is free from any circumstance of suspicion, as when it bears signatures which are not counter-signed, deletions, insertions, a missing page, a page which is new or recent, use of different inks, or it bears different handwritings, or suspicious tears
© Proof of proper custody: this removes the suspicion of fraud and suggest the document is genuine. Proper custodian/depository includes one who is entitled to the possession such as a party and his successors in interest, privies or agents; as well as one who is connected to the document that he may reasonably be inferred to be in [possession thereof, such as a common witness.
B. When the due execution and genuiness has been admitted either expressly or by provision of law, as in failure to deny under oath
C. When the due execution and authentication is immaterial , as in documents which arte used as annexes or attachments
D. When the document need only to be identified
E. In case of public documents
V. PROBATIVE VALUE AND PRESENTATION OF PUBLIC DOCUMENTS
A. Requirement of authentication does not apply because of (a) necessity in that it is difficult and inconvenient to require the attendance of the public officer to appear in court (b) trustworthiness of the documents
B. Probative Value Under Section 23.
1. Written Official Acts are conclusive because it is the act which is recorded
2. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts stated therein
This does not include those made in excess of official duty and they are limited to those facts which the public.
(i) Entries in the Records of Birth, Marriage, or Death of a person, as entered by the Local Civil Registrar
(ii) Data in the Police Blotter
(iii) Return of Search Warrants
(iv). Entries in the time record
(v) Entries in the Community Tax Certificate or Tax Declaration of Property
(vi) The terms, conditions or consideration in a contract
3. The recitals in a public instrument, executed with all the legal formalities are evidence against the parties thereto and their successors in interest, and a high degree of proof is necessary to overcome the presumption that such recitals are true.
4. In order to overcome the documentary evidence, the oral testimony must be “clear, strong and convincing”
c) All other public documents are evidence of the act which gave rise to their execution and date of execution. They are proof why they were executed and the date thereof.
5. Examples: Certifications issued by a public officer. Recommendations and endorsements by a public official.
C. How to Prove a Public Document (Section 24)
1. In case of written official acts or records of official act of public or sovereign bodies
(i). By presenting the Official Publication thereof
(ii) By presenting a certified true copy i.e. attested by the proper custodian and bearing the certification by him, his signature, and the seal of his office. A certified copy is allowed by reason of the principle of Irremovability of Public records under Section 26.
Example: Laws of national application are proved by a certified copy thereof or a copy appearing in the official publication. In case of publication other than the Official Gazette, the copy must be accompanied by the Certificate of the Publication by the publisher
2. As to written foreign public documents
(i) By an Official Publication thereof
(ii) By a Copy attested by the official custodian and accompanied by a certificate by the proper officer of the Philippine foreign service stationed in the country where such foreign document is kept
Thus a Special Power of Attorney executed abroad, must be bear the “Red Ribbon” coming from the Phil. Embassy or Consul
QUESTION: How is a foreign law proven in the Philippines?
Ans. If it is written it is proved by: (i) the Official Publication thereof (ii) An official copy issued by the custodian (iii) certified true copy accompanied by the certification of the Phil. Foreign official and (iii) By the testimony of an expert .
D). In case of the public record of a private writing
(i) By the original record i.e. the very private document kept in official custody
(ii) By a copy duly certified by the custodian
d). Summary of Rules in presenting proof of the existence and contents of documentary evidence
(i) The Original of public record can not be presented by reason of the Rule on the Irremovability of Public Records under section 26. Hence secondary evidence is allowed which consist either of the Official Publication, if so published, or a certified true copy thereof, unless if is extremely necessary that the original of the public record be produced in court, but only upon lawful order of the court.
(ii).If the documents be in a non-official language, i.e not in English or Pilipino, it must be accompanied by a translation in either r said language
(iii). In case of notarized documents . the acknowledgment suffices to authenticate the document and there is no need to present the notary public
(iv). Private documents need not be sealed
(v). If the documents contain alterations, the party offering the document must explain the alteration was: made by another without his concurrence; as consented by all the parties, was innocently made, or that it does not change the meaning, or any other valid reason. Said explanation must be made a the time of the presentation of the document.
(vi) If the document presented consist of judicial record, such as decisions or orders, they are conclusive and the only grounds to impeach said records are (a) want of jurisdiction of the court which issue them (b) there was collusion between the court and the prevailing party and (c) extrinsic fraud was practiced by the winning party
e). If what is sought to be proven is the lack of records in a certain public office, there must be a certificate to that effect
Examples: 1. Certifications from the National Statistics Office that no marriage ever took place between two people; or (2) from the POEA in illegal recruitment cases and the (3) FEU in prosecutions for illegal possession of firearms.
NEED FOR FORMAL OFFER:
The purpose for which evidence is offered must be specified because such evidence maybe admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose and not for another, otherwise the adverse party cannot interpose the proper objection ( Uniwide vs. Titan-Ikeda 511 SCA 335)