RULE 132

Presentation of Evidence
A. EXAMINATION OF WITNESSES

SECTION 1. Examination to be done in open court. The examination of witnesses presented in

a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a different mode of answer, the answers of the
witness shall be given orally.

REQUIREMETNS
Three requriemetns:
1. That the examination be done in open court;
2. Under oath and affirmation and
3. Examination is to be answered by the witness and shall be given orally.

EXAMINAITON IN OPEN COURT

Affidavits are generally admissible as testimony and the affiant himself is not required in court to
testify. In these cases would actually say that it is hearsay. Any written testimony in the form of
written afficavit is hearsay because there is no opportutnity to cross-examine. The rationale that
examination be done in open court is with respect for the accused constitutional right of
Confrontation or to meet the witness face to face with specific reference to specific cases, to
safeguard his right under section 1 and 2 of Rule 132

PEOPLE V. SERVANO
July 17, 2003
Vitug, Dissenting opinion

Section 1, Rule 132, of the Rules of Court provides that the examination of witnesses
presented in a trial or hearing shall be done in open court, and under oath or affirmation, and
that, unless the witness is incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally. The reason for the requirement
obviously is to enable the court to judge the credibility of the witness by the manner he
testifies, by his intelligence, and by his appearance.[18] It is unquestionably the safest and
most satisfactory method of investigating facts, and affords the greatest protection to the rights of
the individual.[19] Section 1, Rule 133, of the Rules of Court requires that in determining the
preponderance or superior weight of evidence on the issues involved, the court may,
among other things, consider the witnesses manner of testifying which can only be
done if the witnesses give their testimony orally and in open court.

A sworn statement is not a substitute for testimony given at and during the trial. The
demeanor of a witness at the stand and in responding to questions is a matter that can prove to
be invaluable in determining the credibility of the witness. The trial court must have the full
opportunity to observe the behavior of the witness in all the declarations that can be significant to
the case, its outcome and in decreeing judgment. It is not enough that the affiant broadly
confirms the contents of the extrajudicial statement. Wigmore, an eminent authority on the rules
on evidence, has said: No one has ever doubted that the former testimony of a witness
cannot be used if the witness is still available for the purpose of testifying at the present
trial.[20] Truly, it is well-entrenched that the findings of the trial court bear great weight because of
 the vantage point it enjoys in scrutinizing the deportment of the affiant-witness; each twitch of the
witnesses muscle, the blink of the eyes, the sweating palms, or the rise and fall of the voice, as
well as the varied change in behavior, could well spell the difference between truth and
falsehood, and determine whether the witness can be relied on or not.

EXCEPTIONS TO THE RULE

Where there is no examination in open court: Rule in examination of Child Witness (Section 8)
SEC. 8. Examination of a child witness. The examination of a child witness presented in a
hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to
speak, or the question calls for a different mode of answer, the answers of the witness shall be
given orally.

The party who presents a child witness or the guardian ad litem of such child witness may,
however, move the court to allow him to testify in the manner provided in this Rule.

WHAT ARE ALLOWED?

1. By live television (section 25)
2. Video-taped deposition (section 27)-- SEC. 27. Videotaped deposition.(a) The prosecutor,
counsel, or guardian ad litem may apply for an order that a deposition be taken of the
testimony of the child and that it be recorded and preserved on videotape. Before the
guardian ad litem applies for an order under this section, he shall consult with the prosecutor
or counsel subject to the second and third paragraphs of section 25(a). (b) If the court finds
that the child will not be able to testify in open court at trial, it shall issue an order that the
deposition of the child be taken and preserved by videotape.
3. SEC. 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure
interviews in child abuse cases.
4. When the child is dead or otherwise unavailable.

SEEMING EXCEPTION UNDER DEPOSITIONS

However, there seems to be an exception also under DEPOSITIONS.

SAN LUIS V. ROJAS

G.R. No. 159127

Depositions are chiefly a mode of discovery. They are intended as a means to compel
disclosure of facts resting in the knowledge of a party or other person which are relevant in some
suit or proceeding in court. Depositions, and the other modes of discovery (interrogatories to
parties; requests for admission by adverse party; production or inspection of documents or
things; physical and mental examination of persons) are meant to enable a party to learn all the
material and relevant facts, not only known to him and his witnesses but also those known to the
adverse party and the latter's own witnesses. In fine, the object of discovery is to make it possible
for all the parties to a case to learn all the material and relevant facts, from whoever may have
knowledge thereof, to the end that their pleadings or motions may not suffer from inadequacy of
factual foundation, and all the relevant facts may be clearly and completely laid before the Court,
without omission or suppression.

Depositions are principally made available by law to the parties as a means of informing
themselves of all the relevant facts; they are not therefore generally meant to be a substitute
for the actual testimony in open court of a party or witness. The deponent must as a rule be
presented for oral examination in open court at the trial or hearing. This is a requirement of the
rules of evidence. Section 1, Rule 132 of the Rules of Court provides:
 "SECTION 1. Examination to be done in open court. The examination of witnesses
presented in a trial or hearing shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally."

Indeed, any deposition offered to prove the facts therein set out during a trial or hearing, in lieu
of the actual oral testimony of the deponent in open court, may be opposed and excluded on
the ground that it is hearsay: the party against whom it is offered has no opportunity to cross-
examine the deponent at the time that his testimony is offered. It matters not that opportunity for
cross-examination was afforded during the taking of the deposition; for normally, the opportunity
for cross-examination must be accorded a party at the time that the testimonial evidence is
actually presented against him during the trial or hearing.

However, depositions may be used without the deponent being actually called to the
witness stand by the proponent, under certain conditions and for certain limited
purposes. These exceptional situations are governed by Section 4, Rule 24 [24] of the Rules
of Court.

SEC 4. Use of depositions. At the trial or upon the hearing of a motion of an

interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of
evidence, may be used against any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of deponent as a witness ;

(b) The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party may be used by an
adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by

any party for any purpose if the court finds: (1) that the witness is dead;
or (2) that the witness if out of the province and at a greater distance than
fifty[25] (50) kilometers from the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence was procured by the party
offering the deposition; or (3) that the witness is unable to attend to testify
because of age, sickness, infirmity, or imprisonment; or (4) that the party
offering the deposition has been unable to procure the attendance of the
witness by subpoena; or (5) upon application and notice, that such
exceptional circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting the testimony
of witnesses orally in open court, to allow the deposition to be used;

(d) If only part of a deposition is offered in evidence by a party, the adverse

party may require him to introduce all of it which is relevant to the party
introduced, and any party may introduce any other parts.
 The principle conceding admissibility to a deposition when the deponent is dead, out of
the Philippines, or otherwise unable to come to court to testify, is consistent with another rule of
evidence, found in Section 47, Rule 132 of the Rules of Court.

SEC. 47.Testimony or deposition at a former proceeding. The testimony or deposition

of a witness deceased or unable to testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be given in evidence
against the adverse party who had the opportunity to cross-examine him."

It is apparent then that the deposition of any person may be taken wherever he may be, in
the Philippines or abroad. If the party or witness is in the Philippines, his
deposition "shall be taken before any judge, municipal or notary public"
(Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the
deposition "shall be taken: (a) on notice before a secretary or embassy or
legation, consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines, or (b) before such person or officer as may be
appointed by commission or under letters rogatory" (Sec. 11, Rule 24).
Leave of court is not necessary where the deposition is to be taken before "a secretary or
embassy or legation, consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines," and the defendant's answer has already been served (Sec. 1,
Rule 24). After answer, whether the deposition-taking is to be accomplished within
the Philippines or outside, the law does not authorize or contemplate any intervention by the
court in the process, all that is required being that "reasonable notice" be given
"in writing to every other party to the action . . (stating) the time and place
for taking the deposition and the name and address of each person to be
examined, if known, and if the name is not known, a general description
sufficient to identify him or the particular class or group to which he
belongs . . . "(Sec. 15, Rule 24). The court intervenes in the process only if a party
moves (1) to "enlarge or shorten the time" stated in the notice (id.), or (2) "upon notice
and for good cause shown," to prevent the deposition-taking, or impose
conditions therefor, e.g., that "certain matters shall not be inquired into" or that the
taking be "held with no one present except the parties to the action and their officers or
counsel," etc. (Sec. 16, Rule 24), or (3) to terminate the process on motion and upon a
showing that "it is being conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party" (Sec 18, Rule 24).

2ND REQUIREMENT: OATH AND AFFIRMATION

This has been discussed under the qualifications of the witness

3rd REQUIREMENT: ANSWERS OF WITNESS MUST BE GIVEN ORALLY

EXCEPTIONS
1. WHERE THE WITNESS IS INCAPACITATED TO SPEAK OR IS DEAF-MUTE, in which case,
the testimony can be done in sign language or with the aid of an interpreter or have the
witness write the answer on a portable white board or may be illustrated or
demonstrated by pictures.
2. IF THE QUESTION CALLS FOR A DIFFERENT ANSWER SUCH AS WHEN ANSWER
CALLS FOR A SPECIFIC GESTURE OR ACTIONfor example, gesture when there is
grave threat or when witness sis asked by the court to identify the specific part of the body
which has been injured by the act of the defendant.
 APPLICATION UNDER THE SUMMARY PROCEDURE

The Rules apply to Summary Procedure but in a modified form, since in Summary Procedure
the testimonies of the witnesses, (in civil cases) will be reduced into writing in the form of
affidavit. Hence, there is no direct, cross, re-cross or re-direct examination.
Affiant is not allowed in Summary Procedure to embody hearsay testimony.
In criminal cases under Summary Procedure, the affidavits of the witnesses take the place of
the direct examination. There is cross examination of the same.
The witness cannot also testify in narrative form. It has to be in a logical question and answer
format. For practical purposes, 1 question, 1 fact.

SEC. 2. Proceedings to be recorded. The entire proceedings of a trial or hearing, including the
questions propounded to a witness and his answers thereto, the statements made by the judge or
any of the parties, counsel, or witnesses with reference to the case, shall be recorded by means of
shorthand or stenotype or by other means of recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer, stenotypist or
recorder and certified as correct by him shall be deemed prima facie a correct statement of such
proceedings.

PRESUMPITON OF REGULAIRTY OF STENOGRAPHIC NOTES

deemed prima facie correct statement of such proceedingsthis relates to presumptions. The
PRESUMPITON OF REGULAIRTY OF STENOGRAPHIC NOTES. What is the effect of this
presumption? The effect is that whatever is written in the TSN, that whatever happened during
the direct testimony or direct exam of that witness, mao na iyang giingon. But the problem
sometimes is that dili tanan makuha especially so if the witness talks very fast.

What is your remedy if you were mistranscribed? FILE MOTION TO

CORRECT TSN and have it corrected. The problem is there are too many errors and
the court might not pay attention to your motion.

USE OF TRANSCRIPT AS EVIDENCE

Yes, it can be used as evidence since it is an official document. You can use it in the same
case or in another case. when you present it, do you have to bring with you the stenographer to
testify as to the notes he made? NO. it is covered under the exceptions of the hearsay rule. It is
one made as an official record made in the performance of the duties a public officer.

FULLERO V. PEOPLE
September 12, 2007

Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can testify
only to those facts which he knows of or comes from his personal knowledge, that is, which are
derived from his perception. A witness, therefore, may not testify as to what he merely learned
from others either because he was told, or he read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has learned. [57] This
is known as the hearsay rule.

The law, however, provides for specific exceptions to the hearsay rule. One of the
exceptions is the entries in official records made in the performance of duty by a public officer.
[58]
In other words, official entries are admissible in evidence regardless of whether the officer or
person who made them was presented and testified in court, since these entries are
 considered prima facie evidence of the facts stated therein. Other recognized reasons for this
exception are necessity and trustworthiness. The necessity consists in the inconvenience and
difficulty of requiring the officials attendance as a witness to testify to innumerable transactions in
the course of his duty. This will also unduly hamper public business. The trustworthiness
consists in the presumption of regularity of performance of official duty by a public officer.

SEC. 3. Rights and obligations of a witness. A witness must answer questions, although his
answer may tend to establish a claim against him. However, it is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or
insulting demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to a penalty for an offense unless
otherwise provided by law; or
5. Not to give an answer which will tend to degrade his reputation, unless it be to the very
fact at issue or to a fact from which the fact in issue would be presumed. But a witness
must answer to the fact of his previous final conviction for an offense.

RIGHT AGAINST SELF-INCRIMINATION

A witness must answer questions even if it will tend to establish a claim against you. It is a
positive command. How is this reconciled with the right against self-incrimination? If a question
calls for an incriminatory answer form the witness, it may be objected to. This rule applies to
criminal cases but NOT in civil cases. Hence, when a question tends to establish a civil claim
against he witness, he cannot refuse to answer the question. But if its a criminal incrimination, we
will go back to that in number 4. But that word claim refers to civil cases.

CASE: Supposing a witness refused to answer because he feels the question is incriminatory.
However, the court directs the witness to give an answer and the witness obeys the order of the
court. Later on the answer turns out to be incriminatory and later on the witness was indicted for
the commission of this offense, can his testimony in court be given in evidence against him in the
form of an admission?
ANSWER: NO, because the witness has initially objected and he gave the answer only in
compliance with an order of the court. According to some decisions that could be treated as a
compelled testimony given under duress and therefore could not be used against the witness.

To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
This may come from the protection needed from the conduct of parties, lawyers and even the
judge. This safeguard appears in a greater form when you look at the examination of child
witness.

Not to be detained longer than the interests of justice require;

There are a lot of things that had been devised to combat that. an example would be the need to
sate in the pre-trial brief how long will the witness will take the witness stand. This does not mean
to be imprisoned. This merely refers to that restriction as to time when you are testifying as a
witness in court. Generally, this is also a safeguard against repetitive questions where point has
already been made. What can be your objections? (1) objection due to repetitive questions and
the witness is detained longer than the interest of justice require and (2) the question had already
been answered.

Not to be examined except only as to matters pertinent to the issue;

When the witness is examined on matters not pertinent toteh issue, the objection can be raised
on 2 grounds:
1. The specific ground under this provision: not to be examined on mattes nto pertitnet to
the issue or
 2. To the general ground that the question is either immaterial or irrelevant to the fact in
issue.

Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law; or
This is now the safeguard against SELF-INCRIMINATION. The first paragraph (opening
paragraph) is the one tht would compel you to answer question even if it may establish a claim
against you and this provision is the one that is counterpart in the CRIMINAL CASES. The
exception here also has exceptions.

EXCEPTIONS TO RULE AGAINST SELF-INCRIMINATION

1. Use Immunity- the witness will still be indicted for the commission of an offense, but the
statements given by the witness cannot be used against him. He is not immunized from
prosecution.
2. Transactional Immunity- There is absolute immunity, both to prosecution and use of the
statements given by the witness.

Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at
issue or to a fact from which the fact in issue would be presumed. But a witness must answer to
the fact of his previous final conviction for an offense
An example would be the case of declaration of nullity of marriage d/t psychological incapacity.
Sir shares about his case of asking about sexual promiscuity of the party.

Exceptions under this provision:

1. If it be the very fact at issue or
2. To a fact from which the fact in issue would be presumed or
3. To the fact of his previous final conviction for an offense

SEC. 4. Order in the examination of an individual witness. The order in which an individual
witness may be examined is as follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.
DEFINITION OF TERMS
proponent-he is the one who presents you so you could testify
Opponentone who will rebut and say that you are not a credible witness

SEC. 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.

DIRECT EXAMIATNION

It is the Examination-in-chief of a witness by the party presenting him on the facts relevant to the
issue.
examination in chiefthere is no other way of examining a witness but by direct exmiantion.
party presenting himthe one who will conduct the examination
About what?about facts relevant to the issue. Otherwise, that testimony may be objected to on
the ground that it is irrelevant.

SEC. 6. Cross-examination; its purpose and extent. Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to any matters stated in
the direct examination, or connected therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue.
CROSS-EXAMINATION
- When conducted: upon termination of direct examination
- Matters covered: witness may be cross-examined by the adverse party as to
= Any matters stated in the direct examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse,
and
= To elicit all important facts bearing upon the issue.
Implied waiver of cross-examination The party was given the opportunity Dela Paz vs. IAC
(1987)

TWO RULES ON LIMITS OF CROSS EXAMINATION

1. English Rule- where a witness is called to testify to a particular fact, he becomes a
witness for all purposes and may be fully cross-examined upon all matters material to the
issue, the examination not being confined to the matters inquired about in the direct
examination.
2. American Rule- restricts cross-examination to facts and circumstances which are
connected with the matters that have been stated in the direct examination of the
witness. (applies when witness is the accused in a criminal case; and when witness is
hostile or adverse party witness)

NOTE: Section 6 is actually the provision that gives examiners sufficient leeway in examining
witnesses because for as long as it can be reasonably related to the fat in issue or in any one of
those facts connected to it. It does not have to be limited to what is stated in the direct
examination.

NATURE OF THE RIGHT TO CROSS-EXAMINE

DELA PAZ V. IAC

G.R. No. 71537 September 17, 1987

The right of a party to confront and cross-examine opposing witnesses in a judicial

litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals
with quasi-judicial powers, is a fundamental right which is part of due process. (Savory
Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258).

xxx xxx xxx

The right of a party to cross-examine the witness of his adversary in invaluable as it is

inviolable in civil cases, no less than the right of the accused in criminal cases. The
express recognition of such right of the accused in the Constitution does not render the
right thereto of parties in civil cases less constitutionally based, for it is an indispensable
part of the due process guaranteed by the fundamental law. ... Until such cross-
 examination has been finished, the testimony of the witness cannot be considered as
complete and may not, therefore, be allowed to form part of the evidence to be
considered by the court in deciding the case. (Bacrach Motor Co., Inc., v. Court of
Industrial Relations, 86 SCRA 27 citing Savory Luncheonette v. Lakas ng
Manggagawang Pilipino, et al., supra, Ortigas, Jr. vs. Lufthansa German Airlines, 64
SCRA 610)

But we have also ruled that it is not an absolute right which a party can demand at all
times. This Court has stated that:

xxx xxx xxx

the right is a personal one which may be waived expressly or impliedly by conduct
amounting to a renunciation of the right of cross-examination. Thus, where a party has
had the opportunity to cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on direct
examination of the witness will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of the right to cross-
examine may take various forms. But the common basic principle underlying the
application of the rule on implied waiver is that the party was given the opportunity to
confront and cross-examine an opposing witness but failed to take advantage of it for
reasons attributable to himself alone.

xxx xxx xxx

The case of the herein petitioner, Savory Luncheonette, easily falls within the confines of
the jurisprudence given above. Private respondents through their counsel, Atty. Amante,
were given not only one but five opportunities to cross-examine the witness, Atty.
Morabe, but despite the warnings and admonitions of respondent court for Atty. Amante
to conduct the cross-examination or else it will be deemed waived, and despite the
readiness, willingness and insistence of the witness that he be cross-examined, said
counsel by his repeated absence and/or unpreparedness failed to do so until death
sealed the witness' lips forever. By such repeated absence and lack of preparation on the
part of the counsel of private respondents, the latter lost their right to examine the
witness, Atty. Morabe, and they alone must suffer the consequences. The mere fact that
the witness died after giving his direct testimony is no ground in itself for excluding his
testimony from the record so long as the adverse party was afforded an adequate
opportunity for cross-examination but through fault of his own failed to cross-examine the
witness. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino,supra; at pp. 263-
267)

EFFECT OF LACK OF CROSS-EXAMINAITON

There was direct examination but there was no cross examination The remedy is to STRIKE
OFF the testimony of the witness. Why? Because it is hearsay . A motion to strike is an
 order issued by the court to order the removal of all or part of the opposing
partys pleading or testimony in court. A motion to strike is to be used to request
elimination of all or part of a trial witness testimony.

****INSTANCES WHERE TESTIMONY STILL ADMISSIBLE DESPITE LACK OF CROSS-EXAMINAITON

Exceptions:
1. If cross-examination is made or
2. Waiver, express or implied for example, you say in open court we waive our right to
cross-examine. Then that is express waiver.

DELA PAZ V. IAC

G.R. No. 71537 September 17, 1987

But we have also ruled that it is not an absolute right which a party can demand
at all times. This Court has stated that:

xxx xxx xxx

the right (to conduct cross-examination) is a personal one which may be

waived expressly or impliedly by conduct amounting to a renunciation of the right
of cross-examination. Thus, where a party has had the opportunity to cross-
examine a witness but failed to avail himself of it, he necessarily forfeits the
right to cross-examine and the testimony given on direct examination of
the witness will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of the right
to cross-examine may take various forms. But the common basic principle
underlying the application of the rule on implied waiver is that the party was given
the opportunity to confront and cross-examine an opposing witness but failed to
take advantage of it for reasons attributable to himself alone.

xxx xxx xxx

The case of the herein petitioner, Savory Luncheonette, easily falls within the
confines of the jurisprudence given above. Private respondents through their
counsel, Atty. Amante, were given not only one but five opportunities to cross-
examine the witness, Atty. Morabe, but despite the warnings and admonitions of
respondent court for Atty. Amante to conduct the cross-examination or else it will
be deemed waived, and despite the readiness, willingness and insistence of the
witness that he be cross-examined, said counsel by his repeated absence and/or
 unpreparedness failed to do so until death sealed the witness' lips forever. By
such repeated absence and lack of preparation on the part of the counsel
of private respondents, the latter lost their right to examine the witness,
Atty. Morabe, and they alone must suffer the consequences. The mere fact
that the witness died after giving his direct testimony is no ground in itself
for excluding his testimony from the record so long as the adverse party
was afforded an adequate opportunity for cross-examination but through
fault of his own failed to cross-examine the witness. (Savory Luncheonette v.
Lakas ng Manggagawang Pilipino,supra; at pp. 263-267)

In the case at bar, the petitioners' failure to cross-examine Loreto was through no
fault of the respondents. As can be gleaned from the record, Loreto was
available for cross-examination from the time she finished her direct testimony on
March 12, 1984 to November 7, 1984, the last scheduled hearing of the case
before her death on December 1, 1984. The petitioners not only kept on
postponing the cross-examination but at times failed to appear during scheduled
hearings. The postponement of the trial on May 23, 1984 to a later date duet o
the correction of the stenographic notes of Loreto's testimony may be justified,
but the same cannot be said for the subsequent postponements requested by
the petitioners. The scheduled trials before November 7, 1984, did not push
through, because of the petitioners' fault. It may also be recalled that at the
scheduled hearing on September 14, 1984 neither the petitioners nor their
counsel appeared leading to the presentation of evidence ex parte. And also
during the scheduled hearing on September 18, 1984, when the petitioners were
allowed to cross-examine Loreto despite the fact that the case was already
deemed submitted for decision, the petitioners again failed to appear.

Under these circumstances, we rule that the petitioners had waived their right to
cross-examine Loreto. Through their own fault, they lost their right to cross-
examine Loreto. Her testimony stands.

***FAILURE TO CROSS-EXAMINE DUE TO DEATH OR INCAPACITY OF WITNESS

NOTE: When we talk about waiver, it usually talks about a cause that is attributable to a party.
The opponent or the adversary is not dong the cross-examination. Now what if the cause for the
failure to cross=examine is not because either of the collision or default or the adverse party. for
example, FORTUITOUS EVENT such as earthquake and the witness died? What happens when
failure to cross-examine was due to the subsequent incapacity or death of the witness?

To my mind, it depends upon the reason why there was failure to conduct subsequent cross-
examination after the direct examination.
1. If cross-examination was deferred at the instance of the PROPONENT, or the witness he
presents then the testimony on direct examination should be stricken because the failure to
cross-examine was not due to causes attributable to the opponent.
2. If the deferment of the cross examination was due to the instance of the COURT for i.e. lack
of material time the testimony on direct examination of the witness must again be stricken
 because the cause for failure to cross-examine was due to a cause not attributable to the
opponent.
3. However, if the deferment was due to a cause attributable to OPPONENT or the party who is
supposed to cross-examine, then the testimony on direct examination would stand and may
be used by the court in consideration of the controversy and susceptible to any motion to
strike. In this case, the conduct of the opponent himself amounts to a waiver.

TRICKS OF THE TRADE: It is possible that the case will drag on for a long time. The judge may get
frustrated sometimes due to several postponements. What if during the court hearing, you are not
prepared (referring to counsel) then the court will insist to continue with the direct examination and cross-
examination you tell the judge that you move on with the direct examination but DEFER the cross-
examination and take the risk if subsequently, cross-examination wont be possible due to the death or
incapacity of the witness to testify.

WHAT WILL NOW BE THE BASIS OF YOUR CROSS-EXAMINATION? The basis for the cross-
examination will be the TRANSCRIPT of Stenographic notes. Most especially If the reasons for
deferment are valid, you have time to think about the questions to ask by just taking a look at the TSN.
But remember, when you cause the deferment of the cross-examination at a later date, the lawyer of the
other party will also be able to take a look at the case and of your possible objections, questions.

^^^DOCTRINE OF INCOMPLETE TESTIMONY^^^: When cross examination cannot be done or

completed due to causes attributable to the party who offered the witness, the incomplete
testimony is rendered incompetent and should be stricken from the record.

Except: where the prosecution witness was extensively cross-examined on the material points and
thereafter failed to appear and cannot be produced despite a warrant for his arrest. (People v. GOrospe,
GR 51513, May 15, 1984)

Section 7. Re-direct examination; its purpose and extent. After the cross-examination of the
witness has been concluded, he may be re-examined by the party calling him, to explain or
supplement his answers given during the cross-examination. On re-direct-examination, questions
on matters not dealt with during the cross-examination, may be allowed by the court in its
discretion.

My question is unsa ni sya, English rule or American rule? Is it a rule that gives leeway to the examiner or
does it limit? If we look at Section7, it appears that theres a limit. Why? Because the purpose of redirect
is for explaining or supplementing answers given during the cross-examination. So if you asked a
question that does not relate whatsoever to the cross-examination of the opponent, it is
not covered. It can be objected on the ground that is it not covered by the cross examination.

However, if you look at the last sentence, On re-direct-examination, questions on matters not dealt with
during the cross-examination, may be allowed by the court in its discretion.

So mura gihapon ug walay limit kay ang court still has the discretion. To my mind, dapat wala na ng last
sentence. Why? Because if you are a lawyer what you need to remember is, tanan facts should have
been stated already in the direct charge. You already have a chance. So upon cross examination,
nakahunahuna ka, tama naa ko nalimtan! You cannot do that, dapat during direct examination. Thats the
reason the law limits it to explaining or supplementing answers given during the cross examination. But
the intention of the law is it may be allowed upon discretion of the court.

Section 8. Re-cross-examination. Upon the conclusion of the re-direct examination, the adverse
party may re-cross-examine the witness on matters stated in his re-direct examination, and also
on such other matters as may be allowed by the court in its discretion.

LIMITAITON
 Theres a limitation again. You can only recross on matters stated in the redirect and also on
matters allowed by the court in its discretion. Again theres that leeway. But to my mind, thats
understandable under Section8 because again if youre in recross-examination, youre the one
given sufficient fullness on the credibility of the witness. Ok lang ni siya. But section7 to my mind
is not ok. You are only given one chance to get all the facts important to the case and that is with
respect to direct examination. That is just how I see it; Im not saying that that is the rule.

Section 9. Recalling witness. After the examination of a witness by both sides has been
concluded, the witness cannot be recalled without leave of the court. The court will grant or
withhold leave in its discretion, as the interests of justice may require.

RECALLING WITNESS

So di ka pwde magpatawag ug witness ug balik kay nahuman naman na siya, na discharge na

siya. After the redirect examination is finished, the judge will say the witness is excused. What do
you mean by that? The witness is discharged. He can go back lying. He cannot be under oath
forever. As a general rule, di na siya tawagon pag-usab as witness. Of course the proponent has
the duty to enter all the facts relevant to his case at the time the witness is called. But what if naa
jud kulang? Well, section 9 can apply to that. The witness may be recalled but only with leave
of court. Why? Because not requiring leave of court before a witness can be
recalled will actually be repugnant to the right not to be detained longer than the
interest of justice. The court must be given the opportunity determine first whether or not the
recall is unnecessary or merely fictitious.

Remember when you do that you are calling him as your witness, who is
the proponent? The original opponent. What do you call that witness? A
hostile witness.

Section 10.
LEADING QUESTION

During direct examination you are not allowed to ask leading questions. In redirect examination
also you are not allowed to ask leading questions. Unsa manang leading question? It is a
question which already projects the answer desired by the lawyer.

Example: so you were there at the time of the commission of the offense? Answerable by yes or
no. You are already suggesting. The correct question would be: where were you at the time the
offense was committed? So W (who, what when, where, why) questions and how.

But if the witness is already considered hostile or if you are calling the
adverse party as your witness, you are allowed to ask leading
questions even during direct examination.
PEOPLE V. RIVERA
AUGUST 16, 1991

But obviously that discretion may not be exercised in a vacuum, as it were, entirely, isolated from
a particular set of attendant circumstances. The discretion to recall a witness is not properly
invoked or exercisable by an applicant's mere general statement that there is a need to recall a
witness "in the interest of justice," or "in order to afford a party full opportunity to present his
case," or that, as here, "there seems to be many points and questions that should have been
 asked" in the earlier interrogation. To regard expressed generalities such as these as sufficient
ground for recall of witnesses would make the recall of witness no longer discretionary but
ministerial. Something more than the bare assertion of the need to propound additional questions
is essential before the Court's discretion may rightfully be exercised to grant or deny recall. There
must be a satisfactory showing of some concrete, substantial ground for the recall. There must
be a satisfactory showing on the movant's part, for instance, that particularly identified
material points were not covered in the cross-examination, or that particularly described
vital documents were not presented to the witness whose recall is prayed for, or that the
cross-examination was conducted in so inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there would be no foundation for a trial court to
authorize the recall of any witness.

WHO CAN ASK QUESTIONS DURING TRIAL

Who can ask questions during trial?
1 Proponent direct and redirect examination
2 Opponent cross and recross examination
3 The judge. Only the judge, ayaw na apila ng mga sheriff etc.

SCOPE OF JUDGES PARTICIPATION AT TRIAL:

A judge who presides at a trial is not a mere referee. He must actively participate therein by
directing counsel to the facts in dispute, by asking clarifying questions, and by showing an
interest in a fast a fair trial. (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960)

He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility.
(People v Moreno, 83 Phil. 286)

However, this power must be exercised by the court sparingly and judiciously. (People v. Ferrer,
44 O.G. 112). Of course, the judge cannot curtail counsel's right to interrogate witnesses.
(People v. Bedia, 83 Phil. 909)

There is no prohibition against the judge conducting the examination of the witness. The counsel
may object to the questions propounded by the judge.

If the court has the power to ask questions to the witness, the court also has the power to stop
further evidence. Under rule 133 section 6

Section 6. Power of the court to stop further evidence. The court may stop the introduction of
further testimony upon any particular point when the evidence upon it is already so full that more
witnesses to the same point cannot be reasonably expected to be additionally persuasive. But
this power should be exercised with caution.

2 powers of the judge that should be exercise with caution:

1 Interrogating witness
2 To stop further evidence

POWER OF COURT TO STOP FURTHER EVIDENCE

The court may stop the introduction of further testimony upon any particular point when the
evidence upon it is already so full that more witnesses to the same point cannot be reasonably
expected to be additionally persuasive.

But this power should be exercised with caution. When the evidence already presented on one
point is sufficient and the party merely seeks to present cumulative evidence which cannot
 produce additional persuasive effect or that he is not sure of what the other witnesses would
testify, the court may in its sound discretion stop the introduction of such further evidence.
(People v. Reyes, et al., 133 SCRA 51)

ROLE OF ATTORNEY DURING PRESENTATION OF EVIDENCE

An attorney has a dual role to perform relative to proving the truth respecting a matter of fact.

He must ensure that all evidence supporting the material allegations, whether raised in
the pleadings or not are admitted by the court.

His other role is to block the admission of evidence supporting his opponents' material
allegations whether raised in the pleadings or not.

In order to perform this dual role the attorney should ensure that the evidence he offers are
admissible in accordance with the Rules of Court and those of his opponent are properly objected
to for being inadmissible

Section 10. Leading and misleading questions. A question which suggests to the witness the
answer which the examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to by the witness, or
contrary to that which he has previously stated. It is not allowed. (5a, 6a, and 8a)

MISLEADING QUESTIONS

Examples of misleading questions (asked by the fiscal to his own witness):

You are related to the accused, correct?
You are the cousin of the accused, correct?

Proper question would be answerable by a specific fact, not merely by a yes or no. A good way of
determining whether or not a question is leading is what is the foundation of the question, is it
who, what when, where, why, how. Pag-ingun ana, thats not leading. But if the answer is limited
to a yes or no, that is a leading question.

WHEN LEADING QUESTIONS ARE ALLOWED

So when are leading questions allowed? The exceptions are 5:

1 On CROSS EXAMINATION if the witness called by the party is hostile, leading
questions can be asked
2 On PRELIMINARY MATTERS this is allowed to hasten the proceedings and to zeroed
in immediately to a particular point or time of a witness testimony
3 When there is a DIFFICULTY IS GETTING DIRECT AND INTELLIGIBLE ANSWERS
FROM A WITNESS WHO IS IGNORANT, OR A CHILD OF TENDER YEARS, OR IS OF
FEEBLE MIND, OR A DEAF-MUTE - WITH RESPECT TO A SPECIAL WITNESS (e.g.,
ignorant, tender years, deaf-mute). Recall that the court may allow leading questions at
any stage in the rule of examination of a child witness in the further interest of justice.
 4 Of an UNWILLING OR HOSTILE WITNESS relate sec10 1 st par xxx Except with
respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
GR: You are not allowed to impeach your own witness
XPN : hostile or unwilling witness
5 Of a WITNESS WHO IS AN ADVERSE PARTY or an officer, director, or managing agent
of a public or private corporation or of a partnership or association which is an adverse
party.

In leading question, in effect, it is the lawyer who is testifying.

SUMMARY
Leading questions
Questions that suggest to the witness the answer, which the examining party desires, are
leading questions.
General Rule: Not allowed
Exceptions:
1. On cross examination;
2. On preliminary matters;
3. When there is a difficulty is getting direct and intelligible answers from a witness who is
ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
4. Of an unwilling or hostile witness; or
o A witness may be considered as unwilling or hostile only if so declared
by the court upon adequate showing of his -
adverse interest,
unjustified reluctance to testify, or
his having misled the party into calling him to the witness stand.
5. Of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party.

When the answer is derived from a leading question the evidence has no
probative value at all even if there is no objection to a leading
question.
Misleading questions
1 Those that assume as true a fact not yet testified to by the witness, or contrary to that which
he has previously stated.
2 Not allowed.

Section 11. Impeachment of adverse party's witness. A witness may be impeached by the party
against whom he was called, by contradictory evidence, by evidence that his general reputation
for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except
that it may be shown by the examination of the witness, or the record of the judgment, that he has
been convicted of an offense.

RATIONALE

Why do you think that a witness should always answer to conviction or to the fact of his
conviction? Because anyway it is of public record. The rule to remember here is impeachment
of a witness can be done only by the opponent. It cannot be done by a party
producing the witness or the proponent. Why? Because again of section 12 that a
party cannot impeach his own witness.
IMPEACHMENT

How do we define impeachment? Impeachment of a witness is the process of challenging or

calling into question the credibility or intention of an individual testifying in court.

IMPEACHMENT; HOW MADE

So how do you make impeachment?

1. By CONTRADICTORY EVIDENCE
This involves the presentation of evidence which is the exact opposite of what the
witness said. In effect the evidence is destroying the credibility of the witness by
essentially telling the court that he cannot be believed and that there is evidence to the
contrary of what he is saying. So he is saying na wala syay utang, ipakita nako nga naa
syay utang. Ipakita nako ang promissory note, contract of loan.

2. By EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY OR

INTEGRITY IS BAD.
By means of character evidence. Evidence of particular wrongful acts is not allowed
except that it may be shown by the examination of the witness, or the record of the
judgment, that he has been convicted of an offense.
The opponent must show that the witness generally has a reputation for dishonesty.
However evidence of a particular wrongful act is not allowed. It means that the specific
examples of character are intransmissible. In other words, you are not allowed to say na
tong grade 1 sa nangopya siya, tong grade 2 nangopya na pod, particular wrongful act.

WHERE CHARACTER EVIDENCE MAY BE ALLOWED:

a. if it can be shown by the examination of a witness or the records of the
judgment that he has been convicted
b. the witness by his own testimony admits the particular act

HOW DO YOU DO IMPEACHMENT BY CHARACTER EVIDENCE? You are actually

presenting witnesses who can attest to the witness character. Si A ang witness, karon
gipresent sa opponent si B nga nag-ingon nga bakakon si A. So si B who impeached the
testimony of A may also be impeached by another witness C or even by A himself as well.

lets relate this to sec3 par5 xxx (5) Not to give an answer which will tend to degrade his
reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would
be presumed. But a witness must answer to the fact of his previous final conviction for an
offense.xxx So exception in section11 also appears in section 3 par 5. So you cannot hide
from a final conviction.

3. By EVIDENCE THAT HE HAS MADE IN SOME OTHER TIMES STATEMENTS

INCONSISTENT WITH HIS TESTIMONY.
- IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS It means here that the
witness made 2 or more conflicting statements. By exposing his conflicting statements,
you reduce his credibility. Pinaka grabe niini if the conflicting statements were both made
in a judicial proceeding. So definitely, you are lying at one time. You have cause of action
for perjury.
- A prior inconsistent statement may not only come from testimony in the
court but also from modes of discovery (deposition, request for admission)
or even from interviews, affidavits, testimonies in another case, and official
interrogations. Those may be sources of prior inconsistent statements.
 - Know that inconsistent statements other than the one made in open
courts are technically hearsay. However, despite the fact that they are
technically hearsay, they are admissible because they are not offered to
prove the proof of prior statement; youre only proving them to impeach
the witness. You do not prove the tone of the prior inconsistent statement but you only
want to prove the fact that this prior inconsistent statement was uttered. Tenor of
declarations only.
- By way of exception only to the hearsay rule. Relate this to section47 of hearsay rule xxx
Section 47. Testimony or deposition at a former proceeding. The testimony or
deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter, may
be given in evidence against the adverse party who had the opportunity to cross-examine
him.
- What are the other exceptions?
*WHEN A PRIOR INCONSISTENT STATEMENT WAS OFFERED TO PROVE AN
ADMISSION

How is impeachment made?

Section 13. How witness impeached by evidence of inconsistent statements. Before a witness
can be impeached by evidence that he has made at other times statements inconsistent with his
present testimony, the statements must be related to him, with the circumstances of the times and
places and the persons present, and he must be asked whether he made such statements, and if
so, allowed to explain them. If the statements be in writing they must be shown to the witness
before any question is put to him concerning them

LAYING THE PREDICATE.

So the proper procedure is, Id like to show you an affidavit. Kindly look at the affidavit. Do you
affirm that the affidavit is yours? Yes I affirm. So compare that affidavit to what was being said by
the witness. Dili pwde nga, diba niingon ka sa una nga ingon-ani, ngano lain naman lagi karon?
Dili na tinuod oie, wala jud ko nag-ingon ana. Unsa man diay ning nasa affidavit oh! Dili na
pwede, binata na! 1.) You have to give him a copy of the written affidavit first before you
proceed to confront the witness. And then, 2.) confronting the witness with prior
inconsistent statements with the circumstances, which means the time, place,
persons under which the circumstances were made. And 3.) asking him whether or
not he made such statement and 4.) you have to give him a chance to explain.

This is known as laying the predicate. How is this different from laying the foundation rule? Can
you recall best evidence rule? In admitting photocopies, you have to lay down the
foundation/basis of that document. That is laying the foundation rule. In laying the predicate, you
have previously laid the foundation. Before a witness can be impeached by evidence that he has
made at other times statements inconsistent with his present testimony: the statements must be
related to him, with the circumstances of the times and places and the persons present, and he
must be asked whether he made such statements, and if so, be allowed to explain them; if the
statements be in writing they must be shown to the witness before any question is put to him
concerning them (laying the predicate).

Laying the foundation or laying the basis- refers to a situation where an evidence which is
otherwise incompetent will be introduced in evidence because it falls under the exceptions to that
rule on exclusion.

Example: If a party desires to introduce secondary or substitutionary evidence he must first lay
the foundation or lay the basis. He must first proved that there was a writing duly executed and
that the original has been lost or destroyed.
 Impeachment means to destroy, to call in to question the credibility of the witness. Whats the
opposite of impeachment? Bolstering.

*I emailed to your officer in charge notes authentication and proof of documents

If a witness maybe impeached by producing prior inconsistent statements, can you do the
opposite? Can you produce prior consistent statements to bolster the credibility of a witness?
Pwde na siya. A prior consistent statement can be produced as evidence if and only if the
credibility of the witness has already been attacked.

GR: It cannot be produced that at previous times his testimony was inconsistent. Prior instance is
not the same as the case as now.
Exception: Only for purposes of bolstering after the credibility of the witness has been impeached.

Other modes of impeachment not found under the Rules: (very limited under the rules are
modes of impeachment of witness, but jurisprudence and for practical trial purposes, there are
other means to impeach a witness)
1 Prove the bias or the opponent will prove that the witness bias is of one party or in favour
of the other witness. Therefore in this case, there is a personal interest in the outcome of
the case. A classic example is a witness for the prosecution who is awaiting sentencing is
likely to be pro-prosecution. In the US, there is a sentencing hearing, after conviction. So
the prosecution will have the opportunity to contest before the judge regarding the
amount of time it believes the accused should go to jail. Accused can pray for leniency;
either suspend the sentence or imposed a minimum of the penalty proscribed for the
offense.
2 Prove inconsistency. To answer a particular question or give testimony regarding a
testament of fact. But in Philippine law there is a presumption of consistency.
3 Evidence of contradiction. This occurs when witness is induced to contradict his
testimony during the present proceeding. This is different from inconsistent statement.
Inconsistent statement includes statements made out of court or in private proceedings
contradiction to the witness says in 2 different things to what he is testifying. This can be
done during cross-examination or during testimony of a witness, procedural.

Section 12. Party may not impeach his own witness. Except with respect to witnesses referred
to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach
his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled
the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be
impeached by the party presenting him in all respects as if he had been called by the adverse
party, except by evidence of his bad character. He may also be impeached and cross-examined by
the adverse party, but such cross-examination must only be on the subject matter of his
examination-in-chief. (6a, 7a)

IMPEACHMENT OF OWN WITNESS

This rule is actually based on the theory that a person who produces a witness vouches for him
as being worthy of credit and that a direct attack on the veracity of the witness would enable the
party to destroy the witness if he spoke against him and to make him a good witness and he
spoke for him with the means of destroying his credit if he spoke against him. Ikaw ang
nagpresent meaning you believe that what the witness testify will be favourable to your cause but
later on you found out that he said something in contradiction with the facts you want to prove.
 You are not allowed to impeach him because in the first place you vouched that this witness will
testify.

Its your fault actually that the witness did not say everything that you wanted to say. Remember a
rule in trial technique; never asked a question from the witness that you do not previously know
the answer. You can do mock examinations. Theres really no rule in prohibiting you from briefing
the witness or rehearsing the witness for testimony, what is prohibited is coaching the witness or
trying to change what he is about to say. Ayaw pagpatakang pangutana na dili ka sigurado sa
iyang itubag. When you bring a witness to the witness stand, you are not allowed to impeach his
credibility.

WHAT WOULD BE THE OCCASION WHEN YOU FEEL THE NEED TO IMPEACH WITNESS
CREDIBILITY? If the testimony of your own witness is not favourable to you. Why is it that
youre allowed to impeach an unwilling /hostile witness or the adverse partys witness?

Because you do not vouched to what he is going to say. You are of course to expect that what the
unwilling/hostile witness of adverse partys witness to say is something that is against your cause
of action or your defence. It stands to reason that the rule of a party not being allowed
to impeach his own witness does not apply to an unwilling/hostile witness or
adverse partys witness.

GR: party producing a witness is not allowed to impeach the latters credibility.
XPN: unwilling or hostile witness or adverse partys witness

When can a witness be considered as unwilling or hostile? There must be a declaration of the
court upon adequate showing of 3 matters:
1 adverse interest
2 unjustified reluctance to testify or
3 planted witnesses.

You can move for the court to declare the witness as unwilling or hostile.

EFFECTS OF THE DECLARATION THAT WITNESS IS UNWILLING OR HOSTILE (3

EFFECTS ACCORDING TO DEAN INIGO)
1 Leading questions can now be asked in direct examinations. Why? Because the
witness there is in all respects, a witness of the adverse party. The impeachment may be
made by the party presenting the hostile or unwilling witness in all respects as if he had
been called by the adverse party.
2 The hostile witness may also be impeached and cross examined by the
adverse party, however, because technically speaking that witness is the witness of the
adverse party. The cross examination must only be on the subject matter of the
examination in chief. And that is an application of the american rule.
3 Cross examination by his own lawyer will be governed by the rules on
direct examination, which means that even in cross examination, a leading
question can be asked.

So baliktad youre the one calling an adverse party or an unwilling or hostile witness, your manner
of examination will be governed by the Rules on Cross Examination. But upon cross examination
of the adverse party, the rule will be covered by what you can do during the direct examination.
Another effect would be, if a lawyer calls an unwilling or hostile witness or an adverse party as a
witness, ka kinsa syang witness? Would he still be the witness of the adverse party or is he
considered the witness already of a party calling him. That is answered by the case of

CHUA GAW VS SUY BEN CHUA

APRIL 16, 2008.
 A party who calls his adversary as a witness is, therefore, not bound by the latters
testimony only in the sense that he may contradict him by introducing other evidence to
prove a state of facts contrary to what the witness testifies on. 35 A rule that provides that
the party calling an adverse witness shall not be bound by his testimony does not mean
that such testimony may not be given its proper weight, but merely that the calling party
shall not be precluded from rebutting his testimony or from impeaching him.

If the declaration, imoha na syang witness, gitawag nimo, you cannot contradict the witness. But
if the declaration is that he is an unwilling or a hostile witness and that he is not your
witness even if youre the one proposing to present him as witness, it may still be
contradicted.

Section 14. Evidence of good character of witness. Evidence of the good character of a witness
is not admissible until such character has been impeached.

RATIONALE

Why? For one it is immaterial to whatever the witness testifies upon. So the witness testifies as to
certain matters of fact and in the end of his testimony he produces evidence saying he is honest
and trustworthy. Theres no need for that. It is immaterial and irrelevant.

When you do that despite the fact that the character of witness has not yet been impeached, you
are liable for bolstering. Bawal ng bolstering. The proponents of a witness may not attempt to
build up the witnesss credibility prior to the witness being impeached.

The rationale is the witness is presumed trustworthy. It also speeds up proceedings by not
spending time bolstering the witness.

BOLSTERING A WITNESS

When can you bolster a witness? If the credibility of the witness has already been
impeached. In all probability if you are the proponent of that witness when can you bolster?
When can you present evidence of good character? Now it would be on redirect
examination. Thats the only time. You will know only kung gi-impeach ba sa opponent ang
witness during cross examination. The proper term for that is rehabilitation. When the
character of the witness has been impeached, the proponent can now present
evidence of his good character. That is commonly known as rehabilitation.

Section 14 applies only when the character of the witness has been impeached. How is
rehabilitation done in case where other modes of impeachment where made? When you say a
witness character is impeached by evidence of bad character, how do you impeach? By evidence
that his character is good. But what about if another mode of impeachment, lets say prior
inconsistent statements. How do you rehabilitate?

Actually Section14 was not saying anything about it. Neither do the other provisions regarding on
this matter have nothing to say about it. The Rules are actually silent. However, my opinion is
that, for the sake of fairness and for purposes of judicial economy, the proponent is confined to
use the same technique used by the opponent to impeach the witness. So for example, if the
opponent tried to impeach the witness by means of bias, then rehabilitation is limited to negating
the claim of bias. Bias ang means sa imong kontra, pagrehabilitate nimo, you prove evidence of
good character. You cannot do that. That is not fair.
 If the opponent brought in a rebuttal witness to testify the character of principal witness as that of
a liar, rehabilitation is limited also to a character witness who testifies the principal witness is a
truthful person. If for example the witness made a prior inconsistent statement (witness was
bought into saying something else before), how do you try to rehabilitate that witness? By saying
that there is no motive to lie, he is actually saying the truth, by means of similar evidence rule.
You cannot use a different type of evidence.

Section 15. Exclusion and separation of witnesses. On any trial or hearing, the judge may
exclude from the court any witness not at the time under examination, so that he may not hear the
testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be
prevented from conversing with one another until all shall have been examined.

EXCLUSION AND SEPARATION OF WITNESS

Section15 has good intentions but again this is one of those rules that do not work. Any good
lawyer who exercises care in handling a case would tell you that you should be able to talk to
your witnesses ahead of his testimony(Atty Espejo talked about his experience). The law says
that on any trial or hearing, the judge may exclude any witnesses not at that time under
examination. Whats the purpose of that? So that they wont hear the testimony of each other,
para dili sila magkopyahanay. Pero pag discharge pod sa witness, they can still talk with each
other. Its actually useless.

The judge may also cause witnesses to be kept separate and to be prevented from conversing
with one another until all shall have been examined. I have not encountered a strict application of
this rule. This is what we call sequestration of witnesses but in the Philippine law, this has not
been working.

SEC. 16. When witness may refer to memorandum. A witness may be allowed to refresh his
memory respecting a fact, by anything written or recorded by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any other time when the fact was
fresh in his memory and he knew that the same was correctly written or recorded; but in such
case the writing or record must be produced and may be inspected by the adverse party, who
may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a
witness may testify from such a writing or record, though he retain no recollection of the
particular facts, if he is able to swear that the writing or record correctly stated the transaction
when made; but such evidence must be received with caution. (10a)

SEC. 17. When part of transaction, writing or record given in evidence, the remainder
admissible. When part of an act, declaration, conversation, writing or record is given in
evidence by one party, the whole of the same subject may be inquired into by the other, and when
a detached act, declaration, conversation, writing or record is given in evidence, any other act,
declaration, conversation, writing or record necessary to its understanding may also be given in
evidence. (11a)

SEC. 18. Right to inspect writing shown to witness. Whenever a writing is shown to a witness, it
may be inspected by the adverse party. (9a)

Refreshing Recollection of Witnesses Rule 132, Sec. 16

REVIVAL OF PRESENT MEMORY

A witness may be allowed to refresh his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was fresh in his memory and knew that the same
was correctly written or recorded,
 BUT in such case the writing or record must be produced and may be inspected by the adverse
party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence.

Note: The memorandum is not evidence, it is still the testimony

PAST RECOLLECTION RECORDED

A witness may testify from such writing or record, (as in the case in revival of present memory)
though he retain no recollection of the particular facts, if he is able to swear that the writing or
record correctly stated the transaction when made; but such evidence must be received with
caution.

Note: It is the memorandum that will serve as evidence (documentary evidence)

WHAT IS THE CONSEQUENCE OF GIVING IN EVIDENCE A PART OF AN ACT, DECLARATION,

CONVERSATION, WRITING OR RECORD? (Rule 132, Section 17) [RULE OF COMPLETENESS]

The whole of the same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its understanding may also be given in evidence.