C OURT TESTIMONY – How a

witness is presented in Court

 

I. INTRODUCTION.
 
      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:
Off-the-records statements
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.
 
B. Nature:
 
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
 
2. :Limitations:
 
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