C Ourt Testimony - How A Witness Is Presented in Court
C Ourt Testimony - How A Witness Is Presented in Court
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.