XIV.

PRESENTATION OF EVIDENCE

A. Examination of Witnesses

RULE 132, Sections 1-18.

A. EXAMINATION OF WITNESSES

Sec. 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
questions calls for a different mode of answer, the answers of the witness shall
be given orally. (1a)

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. (2a)

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 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. (3a, 19a)

Sec. 4. Order in the examination of an individual witness. — The order in

which the 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. (4)

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. (5a)

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 many 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. (8a)

Sec. 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. (12)

Sec. 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. (13)

Sec. 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. (14)

Sec. 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)

Sec. 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. (15)

Sec. 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)

Sec. 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. (16)

Sec. 14. Evidence of good character of witness. — Evidence of the good

character of a witness is not admissible until such character has been
impeached. (17)
Sec. 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. (18)

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 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
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, 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 respect writing shown to witness. — Whenever a writing

is shown to a witness, it may be inspected by the adverse party. (9a)

B. Rule on Examination of A Child Witness

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Sec. 1. Applicability of the Rule. — Unless otherwise provided, this Rule shall
govern the examination of child witnesses who are victims of crime, accused
of a crime, and witnesses to crime. It shall apply in all criminal proceedings
and non-criminal proceedings involving child witnesses.
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Sec. 2. Objectives.— The objectives of this Rule are to create and maintain
an environment that will allow children to give reliable and complete evidence,
minimize trauma to children, encourage children to testify in legal
proceedings, and facilitate the ascertainment of truth.
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Sec. 3. Construction of the Rule.— This Rule shall be liberally construed to
uphold the best interests of the child and to promote maximum
accommodation of child witnesses without prejudice to the constitutional
rights of the accused.

Sec. 4. Definitions.—
(a) A “child witness” is any person who at the time of giving testimony is
below the age of eighteen (18) years. In child abuse cases, a child includes
one over eighteen (18) years but is found by the court as unable to fully take
care of himself or protect himself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition.
(b) “Child abuse” means physical, psychological or sexual abuse and
criminal neglect as defined in Republic Act No. 7610 and other related laws.
(c) “Facilitator” means a person appointed by the court to pose questions
to a child.
(d) “Record regarding a child” or “record” means any photograph,
videotape, audiotape, film, handwriting, typewriting, printing, electronic
recording, computer data or printout, or other memorialization, including any
court document, pleading, or any copy or reproduction of any of the foregoing,
that contains the name, description, address, school or any other personal
identifying information about a child or his family and that is produced or
maintained by a public agency, private agency or individual.
(e) A “guardian ad litem” is a person appointed by the court where the
case is pending for a child who is a victim of, accused of, or a witness to a
crime to protect the best interests of the said child.
(f) A “support person” is a person chosen by the child to accompany him
to testify at or attend a judicial proceeding or deposition to provide emotional
support for him.
(g) “Best interests of the child” means the totality of the circumstances
and conditions as are most congenial to the survival, protection, and feelings
of security of the child and most encouraging to his physical, psychological,
and emotional development. It also means the least detrimental available
alternative for safeguarding the growth and development of the child.
(h) “Developmental level” refers to the specific growth phase in which
most individuals are expected to behave and function in relation to the
advancement of their physical, socio-emotional, cognitive, and moral abilities.
(i) “In-depth investigative interview” or “disclosure interview” is an inquiry
or proceeding conducted by duly trained members of a multi-disciplinary team
or representatives of law enforcement or child protective services for the
purpose of determining whether child abuse has been committed.
Sec. 5. Guardian ad litem.—
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(a) The court may appoint a guardian ad litem for a child who is a victim
of, accused of, or a witness to a crime to promote the best interests of the
child. In making the appointment, the court shall consider the background of
the guardian ad litem and his familiarity with the judicial process, social
service programs, and child development, giving preference to the parents of
the child, if qualified. The guardian ad litem may be a member of the
Philippine Bar. A person who is a witness in any proceeding involving the child
cannot be appointed as a guardian ad litem. .

(b) The guardian ad litem:

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(1) shall attend all interviews, depositions, hearings, and trial proceedings
in which a child participates;
(2) shall make recommendations to the court concerning the welfare of
the child;
(3) shall have access to all reports, evaluations, and records necessary to
effectively advocate for the child, except privileged communications;
(4) shall marshal and coordinate the delivery of resources and special
services to the child;
(5) shall explain, in language understandable to the child, all legal
proceedings, including police investigations, in which the child is involved;
(6) shall assist the child and his family in coping with the emotional effects
of crime and subsequent criminal or non-criminal proceedings in which the
child is involved;
(7) may remain with the child while the child waits to testify;
(8) may interview witnesses; and
(9) may request additional examinations by medical or mental health
professionals if there is a compelling need therefor.

(c) The guardian ad litem shall be notified of all proceedings but shall not
participate in the trial. However, he may file motions pursuant to Sections 9,
10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object
during trial that questions asked of the child are not appropriate to his
developmental level..
(d) The guardian ad litem may communicate concerns regarding the child
to the court through an officer of the court designated for that purpose.
(e) The guardian ad litem shall not testify in any proceeding concerning
any information, statement, or opinion received from the child in the course
of serving as a guardian ad litem, unless the court finds it necessary to
promote the best interests of the child.
(f) The guardian ad litem shall be presumed to have acted in good faith in
compliance with his duties described in Sub-section (b).

Sec. 6. Competency.— Every child is presumed qualified to be a

witness. However, the court shall conduct a competency examination of a
child, motu proprio or on motion of a party, when it finds that substantial
doubt exists regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the duty to tell
the truth in court.

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(a) Proof of necessity.— A party seeking a competency examination must
present proof of necessity of competency examination. The age of the child
by itself is not a sufficient basis for a competency examination..
(b) Burden of proof.— To rebut the presumption of competence enjoyed
by a child, the burden of proof lies on the party challenging his competence.

(c) Persons allowed at competency examination.— Only the following are

allowed to attend a competency examination:

(1) The judge and necessary court personnel;

(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence can be
fully evaluated in his absence.

(d) Conduct of examination.— Examination of a child as to his competence

shall be conducted only by the judge. Counsel for the parties, however, can
submit questions to the judge that he may, in his discretion, ask the child.
(e) Developmentally appropriate questions.— The questions asked at the
competency examination shall be appropriate to the age and developmental
level of the child; shall not be related to the issues at trial; and shall focus on
the ability of the child to remember, communicate, distinguish between truth
and falsehood, and appreciate the duty to testify truthfully.
(f) Continuing duty to assess competence.— The court has the duty of
continuously assessing the competence of the child throughout his testimony.

Sec. 7. Oath or affirmation.— Before testifying, a child shall take an oath or

affirmation to tell the truth.

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.
Sec. 9. Interpreter for child.—
(a) When a child does not understand the English or Filipino language or
is unable to communicate in said languages due to his developmental level,
fear, shyness, disability, or other similar reason, an interpreter whom the child
can understand and who understands the child may be appointed by the court,
motu proprio or upon motion, to interpret for the child.
(b) If a witness or member of the family of the child is the only person
who can serve as an interpreter for the child, he shall not be disqualified and
may serve as the interpreter of the child. The interpreter, however, who is
also a witness, shall testify ahead of the child.
(c) An interpreter shall take an oath or affirmation to make a true and
accurate interpretation.

Sec. 10. Facilitator to pose questions to child.—

(a) The court may, motu proprio or upon motion, appoint a facilitator if it
determines that the child is unable to understand or respond to questions
asked. The facilitator may be a child psychologist, psychiatrist, social
worker, guidance counselor, teacher, religious leader, parent, or relative.
(b) If the court appoints a facilitator, the respective counsels for the
parties shall pose questions to the child only through the facilitator. The
questions shall either be in the words used by counsel or, if the child is not
likely to understand the same, in words that are comprehensible to the child
and which convey the meaning intended by counsel.
(c) The facilitator shall take an oath or affirmation to pose questions to
the child according to the meaning intended by counsel.

Sec. 11. Support persons.—

(a) A child testifying at a judicial proceeding or making a deposition shall

have the right to be accompanied by one or two persons of his own choosing
to provide him emotional support.
(1) Both support persons shall remain within the view of the child
during his testimony.
(2) One of the support persons may accompany the child to the
witness stand, provided the support person does not completely obscure
the child from the view of the opposing party, judge, or hearing officer.
(3) The court may allow the support person to hold the hand of the
child or take other appropriate steps to provide emotional support to the
child in the course of the proceedings.
(4) The court shall instruct the support persons not to prompt, sway,
or influence the child during his testimony.
(b) If the support person chosen by the child is also a witness, the court
may disapprove the choice if it is sufficiently established that the attendance
of the support person during the testimony of the child would pose a
substantial risk of influencing or affecting the content of the testimony of the
child.
(c) If the support person who is also a witness is allowed by the court, his
testimony shall be presented ahead of the testimony of the child.

Sec. 12. Waiting area for child witnesses.— The courts are encouraged to
provide a waiting area for children that is separate from waiting areas used
by other persons. The waiting area for children should be furnished so as to
make a child comfortable.

Sec. 13. Courtroom environment.— To create a more comfortable

environment for the child, the court may, in its discretion, direct and supervise
the location, movement and deportment of all persons in the courtroom
including the parties, their counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court personnel. The child may be allowed
to testify from a place other than the witness chair. The witness chair or other
place from which the child testifies may be turned to facilitate his testimony
but the opposing party and his counsel must have a frontal or profile view of
the child during the testimony of the child. The witness chair or other place
from which the child testifies may also be rearranged to allow the child to see
the opposing party and his counsel, if he chooses to look at them, without
turning his body or leaving the witness stand. The judge need not wear his
judicial robe.

Nothing in this section or any other provision of law, except official in-
court identification provisions, shall be construed to require a child to look at
the accused.

Accommodations for the child under this section need not be supported
by a finding of trauma to the child.

Sec. 14. Testimony during appropriate hours.— The court may order that the
testimony of the child should be taken during a time of day when the child is
well-rested.

Sec. 15. Recess during testimony.—

The child may be allowed reasonable periods of relief while undergoing

direct, cross, re-direct, and re-cross examinations as often as necessary
depending on his developmental level.
Sec. 16. Testimonial aids.— The court shall permit a child to use dolls,
anatomically-correct dolls, puppets, drawings, mannequins, or any other
appropriate demonstrative device to assist him in his testimony.

Sec. 17. Emotional security item.— While testifying, a child shall be allowed
to have an item of his own choosing such as a blanket, toy, or doll.

Sec. 18. Approaching the witness.— The court may prohibit a counsel from
approaching a child if it appears that the child is fearful of or intimidated by
the counsel.

Sec. 19. Mode of questioning.— The court shall exercise control over the
questioning of children so as to (1) facilitate the ascertainment of the truth;
(2) ensure that questions are stated in a form appropriate to the
developmental level of the child; (3) protect children from harassment or
undue embarrassment; and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.

Sec. 20. Leading questions.— The court may allow leading questions in all
stages of examination of a child if the same will further the interests of justice.

Sec. 21. Objections to questions.— Objections to questions should be couched

in a manner so as not to mislead, confuse, frighten, or intimidate the child.

Sec. 22. Corroboration.— Corroboration shall not be required of a testimony

of a child. His testimony, if credible by itself, shall be sufficient to support a
finding of fact, conclusion, or judgment subject to the standard of proof
required in criminal and non-criminal cases.

Sec. 23. Excluding the public.— When a child testifies, the court may order
the exclusion from the courtroom of all persons, including members of the
press, who do not have a direct interest in the case. Such an order may be
made to protect the right to privacy of the child or if the court determines on
the record that requiring the child to testify in open court would cause
psychological harm to him, hinder the ascertainment of truth, or result in his
inability to effectively communicate due to embarrassment, fear, or
timidity. In making its order, the court shall consider the developmental level
of the child, the nature of the crime, the nature of his testimony regarding the
crime, his relationship to the accused and to persons attending the trial, his
desires, and the interests of his parents or legal guardian. The court may,
motu proprio, exclude the public from the courtroom if the evidence to be
produced during trial is of such character as to be offensive to decency or
public morals. The court may also, on motion of the accused, exclude the
public from trial, except court personnel and the counsel of the parties.

Sec. 24. Persons prohibited from entering and leaving courtroom.— The court
may order that persons attending the trial shall not enter or leave the
courtroom during the testimony of the child.

Sec. 25. Live-link television testimony in criminal cases where the child is a
victim or a witness.—

(a) The prosecutor, counsel or the guardian ad litem may apply for an
order that the testimony of the child be taken in a room outside the courtroom
and be televised to the courtroom by live-link television.

Before the guardian ad litem applies for an order under this section, he
shall consult the prosecutor or counsel and shall defer to the judgment of the
prosecutor or counsel regarding the necessity of applying for an order. In
case the guardian ad litem is convinced that the decision of the prosecutor or
counsel not to apply will cause the child serious emotional trauma, he himself
may apply for the order.

The person seeking such an order shall apply at least five (5) days before
the trial date, unless the court finds on the record that the need for such an
order was not reasonably foreseeable.

(b) The court may motu proprio hear and determine, with notice to the
parties, the need for taking the testimony of the child through live-link
television.
(c) The judge may question the child in chambers, or in some comfortable
place other than the courtroom, in the presence of the support person,
guardian ad litem, prosecutor, and counsel for the parties. The questions of
the judge shall not be related to the issues at trial but to the feelings of the
child about testifying in the courtroom.
(d) The judge may exclude any person, including the accused, whose
presence or conduct causes fear to the child.
(e) The court shall issue an order granting or denying the use of live-link
television and stating the reasons therefor. It shall consider the following
factors:

(1) The age and level of development of the child;

(2) His physical and mental health, including any mental or physical
disability;
(3) Any physical, emotional, or psychological injury experienced by
him;
 (4) The nature of the alleged abuse;
(5) Any threats against the child;
(6) His relationship with the accused or adverse party;
(7) His reaction to any prior encounters with the accused in court or
elsewhere;
(8) His reaction prior to trial when the topic of testifying was
discussed with him by parents or professionals;
(9) Specific symptoms of stress exhibited by the child in the days
prior to testifying;
(10) Testimony of expert or lay witnesses;
(11) The custodial situation of the child and the attitude of the
members of his family regarding the events about which he will testify;
and
(12) Other relevant factors, such as court atmosphere and formalities
of court procedure.

(f) The court may order that the testimony of the child be taken by live-
link television if there is a substantial likelihood that the child would suffer
trauma from testifying in the presence of the accused, his counsel or the
prosecutor as the case may be. The trauma must be of a kind which would
impair the completeness or truthfulness of the testimony of the child.
(g) If the court orders the taking of testimony by live-link television:
(1) The child shall testify in a room separate from the courtroom in
the presence of the guardian ad litem; one or both of his support persons;
the facilitator and interpreter, if any; a court officer appointed by the
court; persons necessary to operate the closed-circuit television
equipment; and other persons whose presence are determined by the
court to be necessary to the welfare and well-being of the child;
(2) The judge, prosecutor, accused, and counsel for the parties shall
be in the courtroom. The testimony of the child shall be transmitted by
live-link television into the courtroom for viewing and hearing by the
judge, prosecutor, counsel for the parties, accused, victim, and the public
unless excluded.
(3) If it is necessary for the child to identify the accused at trial, the
court may allow the child to enter the courtroom for the limited purpose
of identifying the accused, or the court may allow the child to identify the
accused by observing the image of the latter on a television monitor.
(4) The court may set other conditions and limitations on the taking
of the testimony that it finds just and appropriate, taking into
consideration the best interests of the child.

(h) The testimony of the child shall be preserved on videotape, digital disc,
or other similar devices which shall be made part of the court record and shall
be subject to a protective order as provided in Section 31(b).
Sec. 26. Screens, one-way mirrors, and other devices to shield child from
accused.—
(a) The prosecutor or the guardian ad litem may apply for an order that
the chair of the child or that a screen or other device be placed in the
courtroom in such a manner that the child cannot see the accused while
testifying. 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) of this Rule. The court shall issue an
order stating the reasons and describing the approved courtroom
arrangement.
(b) If the court grants an application to shield the child from the accused
while testifying in the courtroom, the courtroom shall be arranged to enable
the accused to view the child.

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.
(c) The judge shall preside at the videotaped deposition of a
child. Objections to deposition testimony or evidence, or parts thereof, and
the grounds for the objection shall be stated and shall be ruled upon at the
time of the taking of the deposition. The other persons who may be permitted
to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is determined by the court to be
necessary to the welfare and well-being of the child;
(6) One or both of his support persons, the facilitator and interpreter,
if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape equipment.

(d) The rights of the accused during trial, especially the right to counsel
and to confront and cross-examine the child, shall not be violated during the
deposition.
 (e) If the order of the court is based on evidence that the child is unable
to testify in the physical presence of the accused, the court may direct the
latter to be excluded from the room in which the deposition is conducted. In
case of exclusion of the accused, the court shall order that the testimony of
the child be taken by live-link television in accordance with Section 25 of this
Rule. If the accused is excluded from the deposition, it is not necessary that
the child be able to view an image of the accused.
(f) The videotaped deposition shall be preserved and stenographically
recorded. The videotape and the stenographic notes shall be transmitted to
the clerk of the court where the case is pending for safekeeping and shall be
made a part of the record.
(g) The court may set other conditions on the taking of the deposition that
it finds just and appropriate, taking into consideration the best interests of the
child, the constitutional rights of the accused, and other relevant factors.
(h) The videotaped deposition and stenographic notes shall be subject to
a protective order as provided in Section 31(b).
(i) If, at the time of trial, the court finds that the child is unable to testify
for a reason stated in Section 25(f) of this Rule, or is unavailable for any
reason described in Section 4(c), Rule 23 of the 1997 Rules of Civil Procedure,
the court may admit into evidence the videotaped deposition of the child in
lieu of his testimony at the trial. The court shall issue an order stating the
reasons therefor.
(j) After the original videotaping but before or during trial, any party may
file any motion for additional videotaping on the ground of newly discovered
evidence. The court may order an additional videotaped deposition to receive
the newly discovered evidence.

Sec. 28. Hearsay exception in child abuse cases.— A statement made by a

child describing any act or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted in evidence in any
criminal or non-criminal proceeding subject to the following rules:

(a) Before such hearsay statement may be admitted, its proponent shall
make known to the adverse party the intention to offer such statement and
its particulars to provide him a fair opportunity to object. If the child is
available, the court shall, upon motion of the adverse party, require the child
to be present at the presentation of the hearsay statement for cross-
examination by the adverse party. When the child is unavailable, the fact of
such circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court

shall consider the time, content and circumstances thereof which provide
sufficient indicia of reliability. It shall consider the following factors:
 (1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship between the
declarant child and witness;
(6) Cross-examination could not show the lack of knowledge of the
declarant child;
(7) The possibility of faulty recollection of the declarant child is
remote; and
(8) The circumstances surrounding the statement are such that there
is no reason to suppose the declarant child misrepresented the
involvement of the accused.

(c) The child witness shall be considered unavailable under the following
situations:
(1) Is deceased, suffers from physical infirmity, lack of memory,
mental illness, or will be exposed to severe psychological injury; or
(2) Is absent from the hearing and the proponent of his statement
has been unable to procure his attendance by process or other reasonable
means.

(d) When the child witness is unavailable, his hearsay testimony shall be
admitted only if corroborated by other admissible evidence.

Sec. 29. Admissibility of videotaped and audiotaped in-depth investigative or

disclosure interviews in child abuse cases.— The court may admit videotape
and audiotape in-depth investigative or disclosure interviews as evidence,
under the following conditions:

(a) The child witness is unable to testify in court on grounds and under
conditions established under Section 28 (c).
(b) The interview of the child was conducted by duly trained members of
a multidisciplinary team or representatives of law enforcement or child
protective services in situations where child abuse is suspected so as to
determine whether child abuse occurred.
(c) The party offering the videotape or audiotape must prove that:
(1) the videotape or audiotape discloses the identity of all individuals
present and at all times includes their images and voices;
(2) the statement was not made in response to questioning calculated
to lead the child to make a particular statement or is clearly shown to be
the statement of the child and not the product of improper suggestion;
(3) the videotape and audiotape machine or device was capable of
recording testimony;
 (4) the person operating the device was competent to operate it;
(5) the videotape or audiotape is authentic and correct; and
(6) it has been duly preserved.
The individual conducting the interview of the child shall be available at
trial for examination by any party. Before the videotape or audiotape is
offered in evidence, all parties shall be afforded an opportunity to view or
listen to it and shall be furnished a copy of a written transcript of the
proceedings.
The fact that an investigative interview is not videotaped or audiotaped as
required by this Section shall not by itself constitute a basis to exclude from
evidence out-of-court statements or testimony of the child. It may, however,
be considered in determining the reliability of the statements of the child
describing abuse.
.
Sec. 30. Sexual abuse shield rule.—

(a) Inadmissible evidence.— The following evidence is not admissible in

any criminal proceeding involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim engaged in other
sexual behavior; and
(2) Evidence offered to prove the sexual predisposition of the alleged
victim.
.
(b) Exception.— Evidence of specific instances of sexual behavior by the
alleged victim to prove that a person other than the accused was the source
of semen, injury, or other physical evidence shall be admissible.

A party intending to offer such evidence must:

(1) File a written motion at least fifteen (15) days before trial, specifically
describing the evidence and stating the purpose for which it is offered,
unless the court, for good cause, requires a different time for filing or
permits filing during trial; and
(2) Serve the motion on all parties and the guardian ad litem at least
three (3) days before the hearing of the motion.

Before admitting such evidence, the court must conduct a hearing in

chambers and afford the child, his guardian ad litem, the parties, and their
counsel a right to attend and be heard. The motion and the record of the
hearing must be sealed and remain under seal and protected by a protective
order set forth in Section 31(b). The child shall not be required to testify at
the hearing in chambers except with his consent.

Sec. 31. Protection of privacy and safety.—

 (a) Confidentiality of records.— Any record regarding a child shall be
confidential and kept under seal. Except upon written request and order of the
court, a record shall only be released to the following:
(1) Members of the court staff for administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies; and
(6) Other persons as determined by the court.

(b) Protective order.— Any videotape or audiotape of a child that is part

of the court record shall be under a protective order that provides as follows:
(1) Tapes may be viewed only by parties, their counsel, their expert
witness, and the guardian ad litem.
(2) No tape, or any portion thereof, shall be divulged by any person
mentioned in Sub-section (a) to any other person, except as necessary
for the trial.
(3) No person shall be granted access to the tape, its transcription or
any part thereof unless he signs a written affirmation that he has received
and read a copy of the protective order; that he submits to the jurisdiction
of the court with respect to the protective order; and that in case of
violation thereof, he will be subject to the contempt power of the court.
(4) Each of the tape cassettes and transcripts thereof made available
to the parties, their counsel, and respective agents shall bear the
following cautionary notice:
“This object or document and the contents thereof are
subject to a protective order issued by the court in (case
title), (case number). They shall not be examined,
inspected, read, viewed, or copied by any person, or
disclosed to any person, except as provided in the protective
order. No additional copies of the tape or any of its portion
shall be made, given, sold, or shown to any person without
prior court order. Any person violating such protective order
is subject to the contempt power of the court and other
penalties prescribed by law.”
(5) No tape shall be given, loaned, sold, or shown to any person
except as ordered by the court.
(6) Within thirty (30) days from receipt, all copies of the tape and
any transcripts thereof shall be returned to the clerk of court for
safekeeping unless the period is extended by the court on motion of a
party.
(7) This protective order shall remain in full force and effect until
further order of the court.
 (c) Additional protective orders.— The court may, motu proprio or
on motion of any party, the child, his parents, legal guardian, or the guardian
ad litem, issue additional orders to protect the privacy of the child.
(d) Publication of identity contemptuous.— Whoever publishes or causes
to be published in any format the name, address, telephone number, school,
or other identifying information of a child who is or is alleged to be a victim or
accused of a crime or a witness thereof, or an immediate family of the child
shall be liable to the contempt power of the court.
(e) Physical safety of child; exclusion of evidence.— A child has a right at
any court proceeding not to testify regarding personal identifying information,
including his name, address, telephone number, school, and other information
that could endanger his physical safety or his family. The court may, however,
require the child to testify regarding personal identifying information in the
interest of justice.
(f) Destruction of videotapes and audiotapes.— Any videotape or
audiotape of a child produced under the provisions of this Rule or otherwise
made part of the court record shall be destroyed after five (5) years have
elapsed from the date of entry of judgment.
(g) Records of youthful offender.— Where a youthful offender has been
charged before any city or provincial prosecutor or before any municipal judge
and the charges have been ordered dropped, all the records of the case shall
be considered as privileged and may not be disclosed directly or indirectly to
anyone for any purpose whatsoever.
Where a youthful offender has been charged and the court acquits him,
or dismisses the case or commits him to an institution and subsequently
releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case
shall also be considered as privileged and may not be disclosed directly or
indirectly to anyone except to determine if a defendant may have his sentence
suspended under Article 192 of P. D. No. 603 or if he may be granted probation
under the provisions of P. D. No. 968 or to enforce his civil liability, if said
liability has been imposed in the criminal action. The youthful offender
concerned shall not be held under any provision of law to be guilty of perjury
or of concealment or misrepresentation by reason of his failure to acknowledge
the case or recite any fact related thereto in response to any inquiry made to
him for any purpose.
“Records” within the meaning of this Sub-section shall include those which
may be in the files of the National Bureau of Investigation and with any police
department or government agency which may have been involved in the
case. (Art. 200, P. D. No. 603)

Sec. 32. Applicability of ordinary rules.— The provisions of the Rules of Court
on deposition, conditional examination of witnesses, and evidence shall be
applied in a suppletory character.
Sec. 33. Effectivity.— This Rule shall take effect on December 15, 2000
following its publication in two (2) newspapers of general circulation.

C. Rules on Electronic Evidence, Rule 10 – Examination of

Witness

SEC. 1. Electronic testimony. – After summarily hearing the parties pursuant

to Rule 9 of these Rules, the court may authorize the presentation of
testimonial evidence by electronic means. Before so authorizing, the court
shall determine the necessity for such presentation and prescribe terms and
conditions as may be necessary under the circumstance, including the
protection of the rights of the parties and witnesses concerned.

SEC. 2. Transcript of electronic testimony. – When examination of a witness

is done electronically, the entire proceedings, including the questions and
answers, shall be transcribed by a stenographer, stenotypes or other recorder
authorized for the purpose, who shall certify as correct the transcript done by
him. The transcript should reflect the fact that the proceedings, either in whole
or in part, had been electronically recorded.

SEC. 3. Storage of electronic evidence. – The electronic evidence and

recording thereof as well as the stenographic notes shall form part of the
record of the case. Such transcript and recording shall be deemed prima facie
evidence of such proceedings.

Cases:

1. Examination in Open Court

People vs. Estenzo

72 SCRA 428 (1976)
Examination in Open Court

G.R. No. L-41166 August 25, 1976

PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO, petitioners,
vs.
HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO
OJOY respondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and
Solicitor Mariano M. Martinez for petitioner People of the Philippines.

Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del Rosario and
Dionisio Cerbo.

Sixto P. Demaisip for private respondent.

ANTONIO, J.:p

Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of respondent
Judge, dated July 30, 1975, sustaining the procedure proposed by defense counsel
that, in lieu of the testimony of the witnesses for the accused on direct
examination in open court, he was filing their affidavits, subject to cross-
examination by the prosecution. Per Resolution dated August 22, 1975, this Court issued a
temporary restraining order enjoining the respondent Judge from enforcing the questioned Order.

In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio Ojoy,
accused", of the Court of First Instance of Iloilo, Branch III, after the accused himself had
testified in his defense, his counsel manifested that for his subsequent witnesses he
was filing only their affidavits subject to cross-examination by the prosecution on
matters stated in the affidavits and on all other matters pertinent and material to the case.

Private prosecutor Atty. Amelia K. del Rosario, one of the petitioners here, objected to the proposed
procedure but this notwithstanding, respondent Judge gave his conformity thereto and
subsequently issued the questioned Order.

Contending that respondent Judge gravely abused his discretion because the aforesaid Orders
violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court, which requires that the
testimony of the witness should be given orally in open court, and there is no appeal nor any plain,
speedy and adequate remedy in the ordinary course of law, petitioners instituted the present petition.

We grant the petition.

Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require
that the testimony of a witness shall be given orally in open court. The afore-cited Sections 1 and
2 provide:

SECTION 1. Testimony to be given in open court. — The testimony of

witnesses shall be given orally in open court and under oath or affirmation.

SEC. 2. Testimony in superior courts to be reduced to writing.- In superior courts the

testimony of each witness shall be taken in shorthand or stenotype, the name,
residence, and occupation of the witness being stated, and all questions put to the
witness and his answers thereto being included. If a question put is objected to and
the objection is ruled on, the nature of the objection and the ground on which it was
 sustained or overruled must be stated, or if a witness declines to answer a question
put, the fact and the proceedings taken thereon shall be entered in the record. A
transcript of the record made by the official stenographer or stenotypist and certified
as correct by him shall be prima facie a correct statement of such testimony and
proceedings.

Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of
Sections 77 and 78 of Rule 123, of the Old Rules of Court. Section 77 in turn was taken from Section
381 of Act No. 190, 1 while Section 78 from Section 32 of General Order No. 58. 2

The main and essential purpose of requiring a witness to appear and testify orally at a trial is to
secure for the adverse party the opportunity of cross-examination. "The opponent", according
to an eminent authority, 3demands confrontation, not for the Idle purpose of gazing upon the witness, or
of being gazed upon by him, but for the purpose of cross-examination which cannot be had except by the
direct and personal putting of questions and obtaining immediate answers." There is also the advantage
to be obtained by the personal appearance of the witness before the judge, and it is this it enables
the judge as the trier of facts "to obtain the elusive and incommunicable evidence of a witness
deportment while testifying, and a certain subjective moral effect is produced upon the witness. 4

It is only when the witness testifies orally that the judge may have a true idea of his
countenance, manner and expression, which may confirm or detract from the weight of his
testimony. 5 Certainly, the physical condition of the witness will reveal his capacity for accurate
observation and memory, and his deportment and physiognomy will reveal clues to his character. These
can only be observed by the judge if the witness testifies orally in court. Indeed, the great weight given
the findings of fact of the trial judge in the appellate court is based upon his having had just that
opportunity and the assumption that he took advantage of it to ascertain the credibility of the witnesses.
This has been explained by Chief Justice Appleton, thus:

The witness present, the promptless and unpremeditatedness of his answers or the
reverse, their distinctness and particularity or the want of these essentials, their
incorrectness in generals or particulars, their directness or evasiveness are soon
detected. ... The appearance and manner, the voice, the gestures, the readiness and
promptness of the answers, the evasions, the reluctance the silence, the
contumacious silence, the contradictions, the explanations, the intelligence or the
want of intelligence of the witness, the passions which more or less control-fear, love,
have, envy, or revenge are all open to observation, noted and weighed by jury. 6

Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining the superior weight of
evidence on the issues involved, the court, aside from the other factors therein enumerated, may
consider the "witness manner of testifying" which can only be done if the witness gives his testimony
orally in open court". If a trial judge prepares his opinion immediately after the conclusion of the trial,
with the evidence and his impressions of the witnesses fresh in his mind, it is obvious that he is much
more likely to reach a correct result than if he simply reviews the evidence from a typewritten transcript,
without having had the opportunity to see, hear and observe the actions and utterances of the witnesses.

There is an additional advantage to be obtained in requiring that the direct testimony of the witness
be given orally ill court. Rules governing the examination of witnesses are intended to
protect the rights of litigants and to secure orderly dispatch of the business of the courts.
Under the rules, only questions directed to the eliciting of testimony which, under the general
rules of evidence, is relevant to, and competent to prove the issue of the case, may be
propounded to the witness. A witness in testify only on those facts which he knows of his own
knowledge. Thus, on direct examination, leading questions are not allowed, except or, preliminary
matters, or when there is difficult in getting direct and intelligible answer from the witness who is
ignorant, a child of tender years, or feebleminded, or a deaf mute. 8 It is obvious that such purpose
may be subverted, and the orderly dispatch of the business of the courts thwarted if trial judges are
allowed, as in the case at bar, to adopt any procedure in the presentation of evidence other than
what is specifically authorized by the Rules of Court.

WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and the order of
respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside, and the
temporary restraining order issued on August 22, 1975 is hereby made permanent, without any
pronouncement as to costs.

Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.

Separate Opinions

BARREDO, J., concurring:

I concur, with the qualification herein set forth.

At the outset, I wish to make it clear that I find the innovative procedure sanctioned by respondent
judge to be in line with the progressive tendency characterizing the new rules that have modified the
system of preliminary investigation of criminal complaints by fiscal's, where basically the
determination of the existence or non-existence of probable cause is now supposed to be made on
the basis of mere affidavits and counter-affidavits, as well as those now obtaining in practically all
labor cases in the offices in the Department of Labor which have been vested with exclusive
jurisdiction over the same pursuant to the policy of the government to dejudicialize them, And so, if
the subject case herein were only a civil case instead of being a criminal one and it appearing that
the counsel for the supposedly aggrieved partner the trial fiscal in this instance, who, under the law,
has supervision and control of the prosecution, not the private prosecutor who alone filed the petition
herein, and, at that, in her own name instead of her client, the alleged offended party, 1 I would have
voted to deny the petition. Indeed, I do not see anything fundamentally wrong with the basic procedure
approved by His Honor of allowing the direct examination of a witness to be presented in the form of a
previously prepared affidavit, provided that the same s reaffirmed over the oath of the affiant in open court
when he testifies. But I am now voting to giant the petition because the procedure questioned here is a
little short of what I feel ought to have been done, even on the phypothesis that We were dealing with a
civil case.
While I Would consider it a substantial compliance with the requirement of Sections 1 and 2 of Rule
132 about the testimony of a witness being given in open court and that the questions and answers
be dully recorded by the stenographic notes that the direct examination be in the form of an
affirmation by the witness under oath of a ready made affidavit, particularly when the adverse parts
does not object, it is but in keeping with better practice and more protective of the rights of the
adverse party, to require that the said affidavit be first pasturized or sanitized so as to limit the same
only to evidence that is material and competent. This preliminary step may be done either at the Pre-
trial Where the court may require all affidavits to be used for the purpose to be submitted, or at a
preliminary state of the trial proper before the witness takes the Witness stand. Thus, the resulting
direct testimony will not be polluted with inadmissible evidence and the cross-examination will be
confined to what is material and competent. The only remaining possible objection then would be
that the question asking for affirmation would be leading and that the answer would be in narrative
form, but these are minor considerations. To start with, the affidavit may be made in question and
answer form. Secondly, I have always considered the objection to a leading question as essentially
relating to a mere matter of form, not of substance, hence relatively unimportant. And as to answers
in narrative form, the basic objection thereto is that it may include irrelevant and incompetent
testimony, (Francisco on Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211)
but if the affidavit to be affirmed by a witness has already been purged of the objectionable portions
as above indicated the form of the answer should already be of no consequence.

Undoubtedly this innovative procedure will advance greatly the march towards simplification and
speed in the conduct of trials. As against possible shortcomings thereof in actual operation as above
outlined, I am certain that the advantages to be derived by adopting it far outweigh the bases of the
objections thereto. Of course, it is without saying that for this procedure to be successfully employed
and to attain the objective of speeding up the trial of cases, it is imperative that there should be
intelligent cooperation between the court and contending counsels, who should try to avoid
unnecessary inconsequential objections, for every lawyer must know that the profession's first
mission is to help the court in every way possible so that his case could be disposed of not only
justly but with utmost dispatch, as long as with expedient means employed no substantial prejudice
is caused to the interests of his client.

In brief, my concurrence here is premised on the failure of respondent judge to first have the
affidavits of the accused and his witnesses subjected to the possible legitimate objections of the
prosecution to any portion thereof. It is not decision although significant, that it does not appear in
the record that the fiscal who did not object to the Procedure suggested by counsel for the accused
took pains to require that the affidavits be first submitted for his examination, to give him the
opportunity to make proper objections to portions thereof that might be incompetent or inadmissible.
I take it that such omission could be due to the fiscal's unawareness of the exact import of the
unorthodox procedure in question, hence he was unprepared to act accordingly. His Honor should
nevertheless have seen to it, before giving his assent to the proposal of the defense, that the proper
measures were taken to insure that all the matters contained in the affidavits offered by the defense
are competent and admissible under the law.

I reiterate I see no fundamental objection to a direct testimony in the form I have discussed above.
After all, according to the scholarly main opinion itself, "the main and essential purpose of requiring a
witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of
cross-examination. No doubt, it is Cross-examination in open court that is indispensable. The direct
examination is secondary because, ordinarily, as is generally known, it can be fully rehearsed
anyway, unlike cross-examination.

In closing, I wish to personally commend His Honor's obvious attitude of trying to improve upon
existing procedures with an eve to making trials less burdened with time-consuming and complicated
technical features that can anyway be done away with without sacrificing the essence of the judicial
inquiry into the facts in dispute. Indeed, I have always tried to encourage all judges to look for ways
and means of improving upon the beaten paths of existing practices and techniques, to the end that
the trial and disposition of all kinds of cases before them may be simplified and abbreviated, if they
have to be activists or revolutionaries in the process. Just a word of caution those for there are
corners that cannot and must not be cut, and it is always best to occasionally seek counsel from
among the knowledgeable members of the bar, preferably in the open, before plunging into
untrodden areas.

Separate Opinions

BARREDO, J., concurring:

I concur, with the qualification herein set forth.

At the outset, I wish to make it clear that I find the innovative procedure sanctioned by respondent
judge to be in line with the progressive tendency characterizing the new rules that have modified the
system of preliminary investigation of criminal complaints by fiscal's, where basically the
determination of the existence or non-existence of probable cause is now supposed to be made on
the basis of mere affidavits and counter-affidavits, as well as those now obtaining in practically all
labor cases in the offices in the Department of Labor which have been vested with exclusive
jurisdiction over the same pursuant to the policy of the government to dejudicialize them, And so, if
the subject case herein were only a civil case instead of being a criminal one and it appearing that
the counsel for the supposedly aggrieved partner the trial fiscal in this instance, who, under the law,
has supervision and control of the prosecution, not the private prosecutor who alone filed the petition
herein, and, at that, in her own name instead of her client, the alleged offended party, 1 I would have
voted to deny the petition. Indeed, I do not see anything fundamentally wrong with the basic procedure
approved by His Honor of allowing the direct examination of a witness to be presented in the form of a
previously prepared affidavit, provided that the same s reaffirmed over the oath of the affiant in open court
when he testifies. But I am now voting to giant the petition because the procedure questioned here is a
little short of what I feel ought to have been done, even on the phypothesis that We were dealing with a
civil case.

While I Would consider it a substantial compliance with the requirement of Sections I and 2 of Rule
132 about the testimony of a witness being given in open court and that the questions and answers
be dully recorded by the stenographic notes that the direct examination be in the form of an
affirmation by the witness under oath of a ready made affidavit, particularly when the adverse parts
does not object, it is but in keeping with better practice and more protective of the rights of the
adverse party, to require that the said affidavit be first pasturized or sanitized so as to limit the same
only to evidence that is material and competent. This preliminary step may be done either at the Pre-
trial Where the court may require all affidavits to be used for the purpose to be submitted, or at a
preliminary state of the trial proper before the witness takes the Witness stand. Thus, the resulting
direct testimony will not be polluted with inadmissible evidence and the cross-examination will be
confined to what is material and competent. The only remaining possible objection then would be
that the question asking for affirmation would be leading and that the answer would be in narrative
form, but these are minor considerations. To start with, the affidavit may be made in question and
answer form. Secondly, I have always considered the objection to a leading question as essentially
relating to a mere matter of form, not of substance, hence relatively unimportant. And as to answers
in narrative form, the basic objection thereto is that it may include irrelevant and incompetent
testimony, (Francisco on Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211)
but if the affidavit to be affirmed by a witness has already been purged of the objectionable portions
as above indicated the form of the answer should already be of no consequence.

Undoubtedly this innovative procedure will advance greatly the march towards simplification and
speed in the conduct of trials. As against possible shortcomings thereof in actual operation as above
outlined, I am certain that the advantages to be derived by adopting it far outweigh the bases of the
objections thereto. Of course, it is without saying that for this procedure to be successfully employed
and to attain the objective of speeding up the trial of cases, it is imperative that there should be
intelligent cooperation between the court and contending counsels, who should try to avoid
unnecessary inconsequential objections, for every lawyer must know that the profession's first
mission is to help the court in every way possible so that his case could be disposed of not only
justly but with utmost dispatch, as long as with expedient means employed no substantial prejudice
is caused to the interests of his client,

In brief, my concurrence here is premised on the failure of respondent judge to first have the
affidavits of the accused and his witnesses subjected to the possible legitimate objections of the
prosecution to any portion thereof. It is not decision although significant, that it does not appear in
the record that the fiscal who did not object to the Procedure suggested by counsel for the accused
took pains to require that the affidavits be first submitted for his examination, to give him the
opportunity to make proper objections to portions thereof that might be incompetent or inadmissible.
I take it that such omission could be due to the fiscal's unawareness of the exact import of the
unorthodox procedure in question, hence he was unprepared to act accordingly. His Honor should
nevertheless have seen to it, before giving his assent to the proposal of the defense, that the proper
measures were taken to insure that all the matters contained in the affidavits offered by the defense
are competent and admissible under the law.

I reiterate I see no fundamental objection to a direct testimony in the form I have discussed above.
After all, according to the scholarly main opinion itself, "the main and essential purpose of requiring a
witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of
cross-examination. No doubt, it is Cross-examination in open court that is indispensable. The direct
examination is secondary because, ordinarily, as is generally known, it can be fully rehearsed
anyway, unlike cross-examination.

In closing, I wish to personally commend His Honor's obvious attitude of trying to improve upon
existing procedures with an eve to making trials less burdened with time-consuming and complicated
technical features that can anyway be done away with without sacrificing the essence of the judicial
inquiry into the facts in dispute. Indeed, I have always tried to encourage all judges to look for ways
and means of improving upon the beaten paths of existing practices and techniques, to the end that
the trial and disposition of all kinds of cases before them may be simplified and abbreviated, if they
have to be activists or revolutionaries in the process. Just a word of caution those for there are
corners that cannot and must not be cut, and it is always best to occasionally seek counsel from
among the knowledgeable members of the bar, preferably in the open, before plunging into
untrodden areas.

Galman vs Pamaran
138 SCRA 294 (1985)
 Examination in Open Court

G.R. Nos. 71208-09 August 30, 1985

SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA
CRUZ OF THE SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL
PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO TORIO, SGT. PROSPERO
BONA AND AlC ANICETO ACUPIDO, respondents.
G.R. Nos. 71212-13 August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ,
SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.

CUEVAS, JR., J.:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of the Manila
International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the
country after a long-sojourn abroad, was gunned down to death. The assassination rippled shock-waves throughout the entire
country which reverberated beyond the territorial confines of this Republic. The after-shocks stunned the nation even more as this
ramified to all aspects of Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all
aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly
known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein
various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or
in response to an invitation issued by the Board Among the witnesses who appeared, testified and produced evidence before the
Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas
Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4
UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E. Marcos. One, by
its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the other members of the Board —
namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter
referred and turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary investigation,
the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino
which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was
found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases,
private respondents were charged as accessories, along with several principals, and one accomplice.
Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of the petition
TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the
Agrava Board. 6 Private respondents, through their respective counsel objected to the admission of said exhibits. Private
respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence
against him in the above-entitled cases" 7 contending that its admission will be in derogation of his constitutional right against self-
incrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence
for the prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude
their respective individual testimonies invoking the same ground. 8Petitioner TANODBAYAN opposed said motions contending that
the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not
available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding
Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their respective
memorandum on the issue after which said motions will be considered submitted for resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of evidence in
writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved, issued a Resolution directing
that by agreement of the parties, the pending motions for exclusion and the opposition thereto, together with the memorandum
in support thereof, as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's Resolution
on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985, the prosecution made a written
"Formal Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences produced
by them before the Board, all of which have been previously marked in the course of the trial. 12
All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their
respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions, admitting all the
evidences offered by the prosecution except the testimonies and/or other evidence produced by the private respondents in view
of the immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by way of
certiorari 14 praying for the amendment and/or setting aside of the challenged Resolution on the ground that it was issued without
jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the
mother of deceased Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having arisen from the
same factual beginnings and raising practically Identical issues, the two (2) petitioners were consolidated and will therefore be
jointly dealt with and resolved in this Decision.
The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8) private respondents
who did not invoke their rights against self-incrimination before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are admissible
against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity
granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further
by contending that such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private respondents, on
the other hand, claim that notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board, said
evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that without the immunity
provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section
would suffer from constitutional infirmity for being violative of the witness' right against self- incrimination. 17 Thus, the
protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule on issues
involving immunity statutes. The relative novelty of the question coupled with the extraordinary circumstance that had precipitated
the same did nothing to ease the burden of laying down the criteria upon which this Court will henceforth build future
jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall be
guided, as always, by the constitution and existing laws.
The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and independent body, instead
of any ordinary police agency, be charged with the task of conducting the investigation. The then early distortions and
exaggerations, both in foreign and local media, relative to the probable motive behind the assassination and the person or persons
responsible for or involved in the assassination hastened its creation and heavily contributed to its early formation.19
Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal intents and
purposes, an entity charged, not only with the function of determining the facts and circumstances surrounding the killing, but
more importantly, the determination of the person or persons criminally responsible therefor so that they may be brought before
the bar of justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the facts and
circumstances of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from
Section 12 of the said Presidential Decree, the pertinent portion of which provides —
SECTION 12. The findings of the Board shall be made public. Should the findings warrant the prosecution of any person, the Board
may initiate the filing of proper complaint with the appropriate got government agency. ... (Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or determination
of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any
person called to testify before the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing
environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned to testify will include not
merely plain witnesses but also those suspected as authors and co-participants in the tragic killing. And when suspects are
summoned and called to testify and/or produce evidence, the situation is one where the person testifying or producing evidence
is undergoing investigation for the commission of an offense and not merely in order to shed light on the facts and surrounding
circumstances of the assassination, but more importantly, to determine the character and extent of his participation therein.
Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom except Generals
Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave their testimonies before the
Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to
testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify
or produce evidence, under pain of contempt if they failed or refused to do so. 21 The jeopardy of being placed behind prison bars
even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against
themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-a Both these constitutional rights
(to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet
when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony
given by them.
Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial interrogation? We find
no categorical statement in the constitutional provision on the matter which reads:
... Any person under investigation for the commission of an offense shall have the right to remain and to counsel, and to be
informed of such right. ... 22 (Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific portion of the subject
provision. In all these cases, it has been categorically declared that a person detained for the commission of an offense undergoing
investigation has a right to be informed of his right to remain silent, to counsel, and to an admonition that any and all statements
to be given by him may be used against him. Significantly however, there has been no pronouncement in any of these cases nor in
any other that a person similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the
constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words
"under" and investigation", as in fact the sentence opens with the phrase "any person " goes to prove that they did not adopt in
toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word
"confession" in the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation, for
although the word "confession" is used, the protection covers not only "confessions" but also "admissions" made in violation of
this section. They are inadmissible against the source of the confession or admission and against third person. 25
It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than
one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided is the evil of
extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with
which to prosecute and thereafter convict him. This is the lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino
while disembarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such,
they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest military
authority of his co-petitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the
tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and
rumors from uglywagging tongues, all point to them as having, in one way or another participated or have something to do, in the
alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was
to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too taxing
upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit from them facts and
circumstances surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified
earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board. The
subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board,
indubitably evinced purposes other than merely eliciting and determining the so-called surrounding facts and circumstances of the
assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude that they were called to the
stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very
least even warned while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any
statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police
agency, all the herein private respondents could not have been compelled to give any statement whether incriminatory or
exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to remain silent, to counsel, and
be informed that any and all statements given by them may be used against them. Did they lose their aforesaid constitutional rights
simply because the investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they
continued testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness
against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886
and the awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are not persuaded that
when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves
much less their right to remain silent.
Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional
statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity
for rational judgment would in our opinion be sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of
the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where certain police officers summoned
to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were asked questions following a
warning that if they did not answer they would be removed from office and that anything they said might be used against them in
any criminal proceeding, and the questions were answered, the answers given cannot over their objection be later used in their
prosecutions for conspiracy. The United States Supreme Court went further in holding that:
the protection of the individuals under the Fourteenth Amendment against coerced statements prohibits use in subsequent
proceedings of statements obtained under threat or removal from office, and that it extends to all, whether they are policemen or
other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in the context of threats of removal from
office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against self-
incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae (Ex-Senator
Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself" applies only in favor of an accused in
a criminal case. Hence, it may not be invoked by any of the herein private respondents before the Agrava Board. The Cabal vs.
Kapunan 28 doctrine militates very heavily against this theory. Said case is not a criminal case as its title very clearly indicates. It is
not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to
testify upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained
Cabal's plea that for him to be compelled to testify will be in violation of his right against self- incrimination. We did not therein
state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify,
and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate
him is profounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls.
The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is
sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where only property rights were involved,
"the right not to be compelled to be a witness against himself" is secured in favor of the defendant, then with more reason it
cannot be denied to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements
to be given by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this
constitutional provision against self- incrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment
to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence. At first, the
provision in our organic laws were similar to the Constitution of the United States and was as follows:
That no person shall be ... compelled in a criminal case to be a witness against himself. 30
As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also applicable to cases
other than criminal. Decidedly then, the right "not to be compelled to testify against himself" applies to the herein private
respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional rights, but also the right to
"due process" which is fundamental fairness. 31 Quoting the highly-respected eminent constitutionalist that once graced this Court,
the former Chief Justice Enrique M. Fernando, due process —
... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly,
it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice
Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those strivings for justice and judges the act of officialdom of
whatever branch "in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and
political thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with fixed
content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy 1961, 367 US 1230) Decisions based on such a
clause requiring a 'close and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121).
Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw, 1939,
308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of both counsel,
failed to reveal adherence to and compliance with due process. The manner in which the testimonies were taken from private
respondents fall short of the constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE
in Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of private respondents cannot
be admitted against them in ally criminal proceeding. This is true regardless of absence of claim of constitutional privilege or of the
presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to
private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively discussed
in the pleadings and oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which grants what is
known as "transactional immunity." The distinction between the two is as follows: "Use immunity" prohibits use of witness'
compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand,
"transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony
relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads:
SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents,
or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of
him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked
his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt
from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from
office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of any statement
given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing
evidence do not render the witness immuned from prosecution notwithstanding his invocation of the right against self-
incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still runs
the risk of being prosecuted even if he sets up his right against self- incrimination. The dictates of fair play, which is the hallmark
of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any
and all statements to be given by them may be used against them. This, they were denied, under the pretense that they are not
entitled to it and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the right against self-
incrimination must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a
subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the
Constitution, which is the first test of admissibility. It reads:
No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense
shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or
any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be
inadmissible in evidence. (Emphasis supplied)
The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier discussed, this
exclusionary rule applies not only to confessions but also to admissions, 33 whether made by a witness in any proceeding or by an
accused in a criminal proceeding or any person under investigation for the commission of an offense. Any interpretation of a statute
which will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more constructions or
interpretations could possibly be resorted to, then that one which will avoid unconstitutionality must be adopted even though it
may be necessary for this purpose to disregard the more usual and apparent import of the language used. 34 To save the statute
from a declaration of unconstitutionality it must be given a reasonable construction that will bring it within the fundamental
law. 35 Apparent conflict between two clauses should be harmonized. 36
But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition sine qua non to the
grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore,
to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise, thus:
SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate penalties therefor. A person guilty
of .... including ... refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required
to do so may be summarily adjudged in direct contempt by the Board. ...
Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the
immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec. 5 requires a claim which it, however,
forecloses under threat of contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion
imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the witness' right against
self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning,
the witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under
the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so
as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results the private
respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure
the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore,
that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the
testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted
by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips
away from the witness.
With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being consigned to
unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover before Us, we have strictly
adhered to the Constitution in upholding the rule of law finding solace in the view very aptly articulated by that well-known civil
libertarian and admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs.
Manalang 38 and we quote:
I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individuals. I
have advocated the balancing-of-interests rule in an situations which call for an appraisal of the interplay of conflicting interests of
consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the
dignity of any human being. (Emphasis supplied)
Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of the herein
private respondents an issue which is before the Sandiganbayan. We are merely resolving a question of law and the
pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are DISMISSED. No
pronouncement as to costs.

2. Leading Questions

State vs Scott
149 P2d152 (1944)
Leading Questions

20 Wn.2d 696, THE STATE OF WASHINGTON, Respondent, v. JACK SCOTT,

Appellant

[No. 29251. Department One. Supreme Court May 25, 1944.]

THE STATE OF WASHINGTON, Respondent, v. JACK SCOTT,

Appellant.«1»
[1] WITNESSES - EXAMINATION - LEADING QUESTIONS. A question asked a witness is not leading unless it
suggests the answer desired; and even though it calls for a yes or a no answer it is not leading for that reason unless
it is so worded that the witness in answering yes or no would be testifying in the language of the interrogator rather
than in his own.
[2] SAME - EXAMINATION - ALTERNATIVE FORM OF QUESTIONS. Questions asked a witness in the alternative
form are not necessarily leading.
[3] SAME. In a prosecution for carnal knowledge of a child, held that questions propounded to the prosecuting witness
in the alternative form were not suggestive of the answers and were not objectionable as leading.
[4] SAME - EXAMINATION - LEADING QUESTIONS - DISCRETION OF COURT. The trial court has a wide discretion
in determining what is a proper form of question and as to permitting the asking of a question that is leading.
[5] CRIMINAL LAW - EVIDENCE - RELEVANCY AND COMPETENCY - TESTIMONIAL KNOWLEDGE. In a
prosecution for carnal knowledge of a child, the court properly refused to strike, as conjectural, the testimony of a
witness relating to a conversation which she overheard between the accused and the prosecuting witness when she
was passing by the apartment in which the prosecuting witness resided;

«1» Reported in 149 P. (2d) 152.

[1] See 28 R. C. L. 591.

May 1944] STATE v. SCOTT. 697

it appearing from the testimony of the witness that she had sufficient testimonial knowledge of the identity of the
parties to the conversation to justify the court in permitting the jury to consider it.
[6] APPEAL AND ERROR - REVIEW - PRESUMPTIONS - EFFECT OF INSTRUCTIONS. It will be presumed on
appeal that the jury followed instructions given by the court not to consider as evidence any question or answer thereto
to which an objection had been sustained.
[7] CRIMINAL LAW - EVIDENCE - DOCUMENTARY EVIDENCE - LETTERS. In a prosecution for carnal knowledge
of a child, letters from the accused to the prosecuting witness were properly received in evidence, where the prosecuting
witness identified them as having been written by the accused to her and received by her through the mail, and they
contained matters material to the issue involved.
[8] SAME - RECEPTION OF EVIDENCE - INTRODUCTION OF DOCUMENTARY EVIDENCE - IDENTIFICATION -
SUFFICIENCY. In such a prosecution, the court properly admitted in evidence a hotel registration card purporting to
show that the accused "and wife" registered at a certain hotel on a date within the time involved in the case, where it
appears that the card was sufficiently identified to warrant its admission in evidence, and it was material as corroborating
the testimony of the prosecuting witness that she had occupied a room with the accused at the hotel on or about the
date noted on the card.
[9] APPEAL AND ERROR - BRIEFS - SETTING OUT INSTRUCTIONS - NECESSITY. Assignments of error in giving
instructions cannot be considered when the instructions are not set out in full in the appellant's brief.
 [10] SAME - GROUNDS FOR REVIEW - EXCEPTIONS TO INSTRUCTIONS - NECESSITY FOR SPECIFIC
EXCEPTIONS. Under Rule of Practice X, 193 Wash. 47-a, exceptions to instructions shall be sufficiently specific to
apprise the judge of the points of law or questions of fact in dispute; and an exception is too general to comply with the
rule when it states that the instruction "does not accurately portray the law applicable to this case," or "does not fully
explain to the jury the application of the law therein set forth," or "is incomplete and does not fully set forth the law
applicable to this case."

Appeal from a judgment of the superior court for Snohomish county, Denney, J., entered
December 13, 1943, upon a trial and conviction of carnal knowledge of a child. Affirmed.

A. E. Dailey, for appellant.

Leslie R. Cooper, C. P. Brownlee, and Thomas G. McCrea, for respondent.

698 STATE v. SCOTT. [20 Wn. (2d)

GRADY, J. -

The appellant, Jack Scott, was tried before a jury upon the charge that he carnally knew
a female child of the age of fourteen years, she not then being his wife. A verdict of guilty
was returned, and, from the judgment entered, this appeal has been taken.

In view of the questions raised by the appellant in his brief, it will not be necessary to set
forth in this opinion a summary of the evidence relating to this unfortunate affair, and we
shall refer to it only in so far as need be in order to discuss the questions presented.

By his assignments of error, the appellant complains that the trial court (1) allowed
leading questions to be asked of the complaining witness, (2) allowed the testimony
of the witness Emily Bergin to be considered by the jury, and (3) allowed the jury to
consider the testimony of the witness Martha Swartz. We shall discuss and decide the
questions raised in the foregoing order.

[1, 2] First. The questions claimed by the appellant to have been of a leading character,
and to which timely objections were made, were what is known as the alternative forms
of questions, and they and their answers were as follows:

"Q. I will ask you whether or not he said why he had done what he did? . . .

A. He said that why he done that was because he thought that was the only way of getting
me; that he loved me and he wanted to marry me and that he thought that was the only
way to get me. He said he thought `If I were to go in and touch you then you
would marry me,' he said, `I thought I wouldn't have no one as old as me.'

Q. I will ask you whether or not he said on the same occasion, he said anything
relative to his being the first to touch you? . . .

A. Yes.
Q. I will ask you whether or not he ever asked you to get examined by a doctor? . .
.

A. Yes, he did. I mean yes, I mentioned wanting to get examined by a doctor."

We have not had called to our attention any case in this court, nor have we been able to
find any, in which it has been decided whether this form of question is regarded as
leading. The principal test of a leading question is: Does it suggest the answer
desired? In order to elicit the

May 1944] STATE v. SCOTT. 699

facts, a trial lawyer may find it necessary to direct the attention of a witness to the
specific matter concerning which his testimony is desired, and, if the question does not
suggest the answer, it is not leading. Even though the question may call for a
YES or a NO answer, it is NOT LEADING for that reason, UNLESS it is
so worded that, by permitting the witness to answer yes or no, he
WOULD BE TESTIFYING IN THE LANGUAGE OF THE INTERROGATOR
rather than in his own.

We approve of what is said with reference to the alternative form not being a leading
question in III Wigmore on Evidence (3rd ed.), p. 129, § 772 (2):

"The alternative arm of question (`State whether or not you said that you refused',
`Did you or did you not refuse?')is free from this defect of form, because both
affirmative and negative answers are presented for the witness' choice. Nevertheless,
such a question may become leading, in so far as it rehearses lengthy details which
the witness might not otherwise have mentioned, and thus supplies him with full
suggestions which he incorporates without any effort by the simple answer, `I did,' or `I
did not.' Accordingly the sound view is that such a question may or may not be
improper, according to the amount of palpably suggestive detail which
it embodies."
[3] The questions propounded, as above set forth, were not leading. The rulings made by
the trial court upon the objections made are further supported by the fact that the answer
to the first question is as fully explanatory as would have been the case had any
other form of question been used, and shows a TOTAL LACK OF SUGGESTION by its
form. The record shows that, after an affirmative answer was given to the second
question, the witness was asked what was said, and her answer was ordered
stricken by the court, and the inquiry was not pursued further. The third question did
not suggest any particular answer, as that given by the witness clearly so indicates.
[4] In addition, the rule has been announced many times by this court that the trial court
has a wide discretion in determining what is a proper form of question and as to permitting
the asking of a question that is leading.

700 STATE v. SCOTT. [20 Wn. (2d)

The trial court in this case properly allowed the above quoted questions to be asked.

[5] Second. The appellant contends that the testimony of witness Emily Bergin should
have been stricken by the court because it was conjectural on her part and arose out of
suspicion rather than being based upon any testimonial knowledge she possessed.

The substance of the testimony of this witness, as developed by both her direct and cross-
examination, was that the family, of which the prosecuting witness was a member, had
an apartment in the house operated by her; that she had seen the appellant go to this
apartment, particularly a short time before the taking place of the conversation about
which she testified; that she had heard appellant talk and was able to recognize his voice;
that, on the occasion in question, she was passing by the apartment when she overheard
a conversation between the prosecuting witness and the appellant, and this she related
to the jury.

We are of the opinion that it was made to appear from the testimony of the witness that
she had sufficient testimonial knowledge as to the identity of the parties to the
conversation to justify the court in refusing to order that her testimony be stricken and in
permitting the jury to consider it. The testimony of the witness was direct and with
reference to a conversation she had overheard, and what the jurors had to decide was
whether she did overhear the conversation and whether she had sufficient knowledge of
the sound of the voices of the parties as to enable her in this way to identify them. In these
respects we think questions for the jury were presented.

[6] Third. This assignment of error is without merit. Counsel for the state sought to lay a
foundation whereby he might ask witness Martha Swartz to relate a conversation she
overheard between the prosecuting witness and the appellant. But, in the opinion of the
court, it was not sufficient, and the witness was not permitted to relate the conversation
when counsel asked her to do so.

May 1944] STATE v. SCOTT. 701

The court instructed the jury not to consider as evidence any question or answer thereto
to which the court had sustained an objection, and we must assume that the jury followed
the instruction and did not attach any importance to any of the preliminary testimony given
by the witness. This must necessarily be so because otherwise an unsuccessful attempt
to lay a foundation for testimony by questions preliminary in character would be ground
in all cases for urging error on appeal on account of the possibility that the jury might draw
some unfavorable inference from the testimony thus far given.

[7] In addition to the specific assignments of error set forth in his brief, the appellant urges
that certain letters were erroneously admitted in evidence; but the prosecuting witness
identified all of them as having been written by the appellant to her and letters which she
received through the mails. They contained matters material to the issue involved, and
were properly received in evidence.

[8] Error is also claimed in the admission in evidence of a hotel registration card purporting
to show that appellant "and wife" registered at a certain hotel on a date within the time
involved in this case. The basis of the objection of appellant is that it was made to appear
that, although the witness who identified the card had operated the hotel on the date the
card bears, she did not operate it far several months prior to the time of giving her
testimony, and there was no proof offered as to its identity by anyone who had had
possession of the card during the intervening time. The record, however, does not support
this claim. The witness testified that the registration cards were kept by her while she was
operating the hotel in their usual place in the office of the hotel; that they were also kept
in the storeroom directly behind the office, were filed in a box, and that this was where
she found the card when she went to look for it. The card was sufficiently identified to
warrant its admission in evidence. The evidence was material in that it corroborated the
testimony of the prosecuting witness that she had occupied a room

702 STATE v. SCOTT. [20 Wn. (2d)

with the appellant at this hotel on or about the date noted on the card.

[9, 10] Three of the instructions given by the court to the jury are claimed to be erroneous,
but we will not review them for the reason that they are not set out in appellant's brief, as
required by Rule 16 (5) of this court as amended, 15 Wn. (2d) xvii. State v. Elwood, 193
Wash. 514, 76 P. (2d) 986; State v. Jensen, 194 Wash. 515, 78 P. (2d) 600; State v.
Kennedy, 19 Wn. (2d) 152, 142 P. (2d) 247. And no sufficient exceptions were taken to
them in the trial court, as provided by Rule X of the Rules of Pleading, Procedure, and
Practice prescribed by this court, 193 Wash. 47-a. State v. Eckert, 173 Wash. 93, 21 P.
(2d) 1035; Parton v. Barr, 174 Wash. 314, 24 P. (2d) 1070.

The exceptions taken were as follows:

"The Defendant excepts to Instruction No. 5 as given by the Court for the reason that it
does not accurately portray the law applicable to this case.

"The Defendant excepts to Instruction No. 6 for the reason that it does not fully explain to
the Jury the application of the law therein set forth.

"The Defendant excepts to Instruction No. 8 as given by the Court for the reason that it is
incomplete and does not fully set forth the law applicable to this case."

These exceptions were too general to comply with Rule X, which provides that they "shall
be sufficiently specific to apprise the judge of the points of law or questions of fact in
dispute."

It may seem that these rules are harsh when applied to a case as serious in its
consequences as the one now before us. But they have been in effect for a long time and
are known, or should be known, to all who seek reviews of judgments of the trial courts.
Their purpose, as we have said many times, is in aid of the orderly administration of
justice, and, if they are to serve the purpose intended, they must be enforced.

The judgment is affirmed.

3. Impeaching One’s Own Witness

3. Cross Examination

De La Paz, Jr. vs. Intermediate Appellate Court

154 SCRA 65 (September 17, 1987)
Cross-Examination

G.R. No. 71537 September 17, 1987

dela Paz vs. IAC

On May 12, 1983, Loreto de la Paz filed a complaint against the petitioners with the Regional Trial
Court of Rizal for a judicial declaration of ownership of a parcel of land covered by Original
Certificate of Title No. 901 in the name of Ponciano de la Paz with damages.
Loreto alleged that the subject parcel of land was among the properties adjudicated to her and her
mother as a result of a partition submitted by the heirs of Ponciano de la Paz and approved by the
court in Civil Case No. 1399 of the Court of First Instance of Rizal. The subject matter of Civil
Case No. 1399 was Ponciano's testate estate.
In their answer, the petitioners denied that the disputed lot was among the properties adjudicated
to Loreto and her mother. They claimed that the parcel of land was not accounted for in the probate
proceedings but is actually community property of the parties.
The parties, except for petitioner Enrique de la Paz, were admittedly compulsory heirs of Ponciano
de la Paz who died in 1916.
The parties failed to arrive at an amicable settlement during pre-trial. Hence, trial on the merits
followed.
Loreto took the witness stand. She finished her direct testimony on March 12, 19984.
On April 25, 1984, the petitioners' counsel began his cross-examination of Loreto. The cross-
examination was, however, not completed. The petitioners' counsel moved in open court for the
continuance of the cross-examination on the ground that he still had to conduct a lengthy cross-
examination.
On May 18, 1984, Loreto's counsel filed a motion for "correction of transcript" due to some errors
in the transcript of stenographic notes taken during the direct testimony of Loreto. The motion was
granted.
On August 13, 1984, trial resumed. The petitioners' counsel, however, asked for still another
postponement of the cross-examination to give him a chance to go over the stenographic
notes. In an order of the same date, the hearing was again postponed. (p. 17, Court of Appeals'
rollo)
During the scheduled trial on September 14, 1984, neither the petitioners, nor their counsel
appeared despite due notice. Loreto's counsel, therefore, filed a motion that she be allowed
to present evidence ex parte before a commissioner. The motion was granted and Loreto
presented additional evidence ex parte in the afternoon of the same day. On this same date,
she finished the presentation of her evidence and submitted her case for decision.
Despite this development, the petitioners upon their motion were allowed to cross-examine Loreto.
On the scheduled hearing set on September 18, 1984, the petitioners' counsel failed to appear,
and the cross-examination of Loreto was deferred for the fourth (4th) time. (p. 17, Court of
Appeals' rollo)
Finally, on November 7, 1984, the petitioners' counsel resumed his repeatedly postponed cross-
examination of Loreto. The cross-examination was, however, cut short and rescheduled again on
motion of the petitioners' counsel.
Unfortunately, Loreto died on December 1, 1984. An amended complaint was filed for the
purpose of substituting the respondents, herein, they being the children and heirs of Loreto.
At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike off
the record the entire testimony of Loreto. The motion was denied. A verbal motion for
reconsideration was likewise denied.
the lower court promulgated a decision in Civil Case No. 164-A declaring the private respondents,
the children and heirs of Loreto, as the true owners of the subject parcel of land. Damages were
also awarded in favor of the private respondents.
On June 20, 1985, the appellate court also rendered a decision in AC-G. R. SP No. 05472. The
petition was denied due course and dismissed. A motion for reconsideration was denied for lack
of merit.
Petitioners filed a petition to review on certiorari the appellate court's decision.
The petitioners contend that the appellate committed grave abuse of discretion when it
sanctioned the trial court's orders which denied the striking out of the testimony of original
plaintiff Loreto de la Paz from the record.
Whether or not the appellate court committed GAD when it sanctioned the TC's order which denied
the striking out of the testimony of Loreto? NO.
A motion to strike off testimony from the record is an interlocutory order. Well-settled is the rule
that interlocutory orders may not be subjects of a petition of certiorari unless issued in patent abuse
of discretion.
We see no grave abuse of discretion on the part of the trial court when it issued the questioned
order. True, we have consistently ruled on the nature of the right of cross-examination, to wit:
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.
xxx xxx xxx

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. But
we have also ruled that it is not an absolute right which a party can demand at all times.
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.
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.
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 posponements 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.

Fulgado vs. Court of Appeals

182 SCRA 81 (February 12, 1990)

Facts:
Ruperto Fulgado, an old man, filed a case against Rufino Custodio, et.
al. (defendants) for the annulment of certain contracts of sale and partition
with accounting.

After several deferments, the pre-trial conference was set. However,

the defendants and their counsel failed to appear on the said date. Hence,
they were declared in default and Ruperto Fulgado was allowed to present his
evidence ex parte.

The defendants filed a motion to lift the order of default but such motion
was denied by the trial court. The defendants then filed an appeal with the
Court of Appeals, who ruled in their favor, lifted the order of default, and
remanded the case to the trial court.

The case was again set for hearing. Unfortunately, the presiding judge
went on official leave and the hearing was postponed anew. During the said
period, Ruperto Fulgado died, and his sole witness, Jose Fulgado, which was
presented ex parte, had earlier migrated to the United States. When the
hearing resumed, the defendants moved to strike the testimonies of Ruperto
Fulgado and Jose Fulgado off the record on the ground that they were deprived
of their right to cross-examine the said persons. The counsel for Fulgado
opposed the motion but the trial court ruled in favor of the defendants and
ordered the testimonies of Ruperto and Jose be stricken off the record. Since
the plaintiff had no more witnesses to present, apart from Ruperto and Jose,
the trial court dismissed the case.

On appeal, the Court of Appeals affirmed the ruling of the lower court.
Hence, this appeal.

Issue/s:
The issue in this case is whether or not the testimonies of the deceased,
Ruperto Fulgado, and his witness, Jose Fulgado, should be stricken off the
record.

Held:
The Supreme Court reversed the ruling of the trial court and the Court
of Appeals and ordered the trial court to reinstate the case and allow the direct
testimonies of Ruperto Fulgado, and his witness, Jose Fulgado to remain in
the record.

According to the Supreme Court, the right to cross-examine is a

personal right which may be forfeited by failure of a party to avail of the ample
opportunity given him. Where the failure to obtain cross-examination was
imputable to the cross-examiner’s fault, the lack of cross-examination is no
longer a ground for exclusion according to the general principle that an
opportunity, though waived, will suffice. In the case at bar, the defendants
had enough opportunity to cross-examine Ruperto Fulgado before his death,
and Jose Fulgado, before his migration. Despite their knowledge of Ruperto
Fulgado’s failing health and Jose’s imminent travel, the defendants did not
move swiftly to cross-examine the said plaintiff and his witness. As a matter
of fact, it took them more than one year from the finality of the judgment of
the Court of Appeals lifting the order of default before they asked the trial
court to resume the hearing of the case. Further, the tasked of recalling a
witness for cross-examination is in law, imposed on the party who wishes to
exercise the said right because of the fact that it is a personal right and can
be waived. In addition, eventhough Jose Fulgado is out of the country, the
defendants should have resorted to the various modes of discovery to corss-
examine Jose. Defendants even disclosed the fact that they had knowledge
that Jose was in the country for a visit and yet they did not exert any effort to
have him subpoenaed.
 As such, the said acts of the defendants constitute a waiver of their right
to cross-examination.

Note also that in this case, the Supreme Court said that excluding the
entire testimony of a party who died before he could be cross-examined was
too harsh. According to the Supreme Court, the more prudent alternative
should be to admit the direct examination so far as the loss could have been
shown to be not in that instance a material loss.

Razon vs. Intermediate Appellate Court

207 SCRA 234(March 16, 199)
Cross-Examination

Facts:
Enrique Razon organized the E. Razon Inc. on April 23, 1966, stock
certificate no. 003 for 1500 shares of stock was issued in the name of Juan T.
Chuidian. From the time the certificate of stock was issued, Enrique Razon
never questioned the ownership of the said shares of stock but nevertheless
retained possession of the same. When Juan T. Chuidian died, his son, Vicente,
as administrator of his estate, filed a complaint against E. Razon Inc., Enrique
Razon, and other board members of the said corporation (defendants) for the
delivery of the certificate of stock representing the shareholdings of the
deceased in the E. Razon Inc.

In their answer, the defendants alleged that Enrique Razon was in reality
the actual owner of the said shares of stock and was actually the one who paid
for the said stocks and that the deceased never paid any amount for the said
shares.

During trial, Enrique Razon testified that the said shares were subject
to an agreement between him and the deceased wherein the deceased
acknowledged Enrique Razon’s ownership over the said shares unless the
deceased opted to pay for it. Such option was never exercised by Juan
Chuidian. The plaintiff cross-examined the defendant with regard to the said
testimony. The Regional Trial Court ruled in favor of the defendants and
declared that Enrique Razon was the real owner of the disputed shares.

On appeal, the IAC tuled in favor of the plaintiff. Applying the Dead
Man’s Statute, the IAC excluded the testimony of Enrique Razon with regard
to the agreement between him and the deceased. The defendants appealed
the ruling of the IAC to the Supreme Court.
Issue/s:
The issue in this case is whether or not the testimony of Enrique Razon,
with regard to the agreement between him and the deceased, should be
excluded from the records.

Held:
According to the Supreme Court, the testimony of Enrique Razon should
not be excluded from the record. First, the said testimony is not within the
Dead Man’s statute because said rule is only applicable in cases against the
administrator or its representative of an estate upon a claim against the estate
of the deceased person. The case at bar was not a case against the
administrator or representative of an estate but rather, it was the
administrator himself who brought the case against the defendant and the
testimony to be excluded is the testimony of the defendant. Second, even
assuming that the said testimony falls within the Dead Man’s Statute, the
records show that the plaintiff never objected to the testimony of the Enrique
Razon and such testimony was even subjected to cross-examination by the
plaintiff’s counsel. As such, the plaintiff is deemed to have waived the rule.

Capitol Subdivision, Inc. vs. Province of Negros Occidental

52 O.G. 4672 (July 31, 1956)
Cross-Examination

Facts:
The Provincial Hospital of Occidental Negros was erected on a parcel of
land in Bacolod, whose ownership is claimed by the Province of Negros
Occidental by virtue of a deed of sale with Donation executed in its favor by
Jose Benares, the former owner, as a result of expropriation proceedings.
Although the transfer certificate of title had not been issued to the province,
the said parcel of and stood in the records of the assessment office as the
property of the province and enjoyed exemption from realty tax.

Capitol Subdivisions Inc. now claims to be the owner of the said parcel
of land and instituted an action in the Court of First Instance against the
province for recovery of the possession of the said land and collection of
reasonable rents for its use.

CAPITOL alleged that the said lot was foreclosed by the Philippine
National Bank from Jose Benares due to the failure of the latter to pay his
debts to the former. Afterwards, PNB signed a contract with Carlos Benares
wherein the latter would purchased the disputed lot. Carlos Benares, in turn,
assigned his rights to the said contract to CAPITOL and the plaintiff, after full
payment of the purchase price, obtained a deed of absolute sale from PNB and
as a result, it was issued a transfer of certificate of title for the said lot.

In its answer, the province put up the defense that it had acquired the
lot in question from Jose Benares through an expropriation proceedings which
was amicably settled by the parties thereby resulting to the execution of a
deed of absolute sale and donation in favor of the province. That all the
records regarding the said proceeding were totally destroyed during World
War II. In addition, the province alleged that CAPITOL had constructive notice
of those facts and was not an innocent purchaser because it already knew fully
well at the time it bought the lot, it was already occupied by the hospital which
was operating for many years prior to the date of acquisition by CAPITOL.
Further, the controlling stockholder and president and general manager of
CAPITOL, Mr. Alfredo Montelibano, also had knowledge of those facts since
during his incumbency as mayor of Bacolod, the city was contributing a large
sum annually for the support, operation, and maintenance of the hospital.

During trial, Mr. Montelibano testified that CAPITOL had no knowledge

of the expropriation or deed of sale with donation at the time it bought the
disputed land. The province failed to cross-examine him on those matters due
to CAPITOL’s objection and the trial court rulings sustaining the objections.
According to the trail court, Mr. Montelibano was on the witness stand as a
witness for CAPITOL and therefore, the province cannot cross-examine him
on any matter that would elicit all important facts bearing on the issue which
was not taken up in the direct examination of the said witness..

The trial court ruled in favor of CAPITOL and ordered the province to
restore to the plaintiff the possession of the said parcel of land and to pay the
rent for its use.

The province appealed to the Court of Appeals, who in turn, certified the
case to the Supreme Court for involving more than P 50,000.

Issue/s:
The issue in this case is whether the province, on cross-examination,
elicit all important facts on matters which were not taken in the direct
examination of the witness for CAPITOL.

Held:
Regarding the said issue, the Supreme Court said that the adverse party
may, on cross-examination, elicit from the plaintiff’s witness all important
facts bearing on the issue and which were not taken up in the witness’ direct
examination.
 Quoting former Chief Justice Moran:

“In this jurisdiction, section 87 above quoted provided that the

adverse party may cross-examine a witness for the purpose
among others, of eliciting all important facts bearing upon the
issue. From this provision it may clearly be inferred that a
party may cross-examine a witness on matters not embraced
in his direct examination. But that does not mean that a party
by doing so is making the witness his own in accordance with
section 83.”

The Supreme Court set-aside the decision of the trial court and
remanded the case to the court of origin for further proceedings.

U.S vs. Mercado

26 Phil. 127 (1913)
Cross-Examination

G.R. No. L-8332 November 13, 1913

THE UNITED STATES, plaintiff-appellee,

vs.
PIO MERCADO, TOMAS MERCADO, and
CATALINO MERCADO, defendants-appellants.

Eugenio Paguia, for appellants

Officee of the Solicitor-General Harvey, for appellee.

JOHNSON, J.:

These defendants were charged with the crime of coaccion in the Court of First Instance of the Province of Bulacan.
On the 13th of March, 1912, one Claro Mercado presented a complaint against the defendants in the court of the
justice of the peace of Baliuag. The justice of the peace conducted a preliminary examination and found that there
was probable cause for believing that the defendants were guilty of the crime charged and held them for trial in the
Court of First Instance. On the 21st of March, 1912, the prosecuting attorney of said province presented the
complaint, which alleged:

That the said accused on December 22, 1911, in the municipality of Baliuag, Province of Bulacan, P. I., did willfully
and criminally, without legitimate authority therefore, and by means of violence or force employed upon the person
of Claro Mercado, prevent the latter from rendering aid to Maria R. Mateo in order that Santiago Mercado might at
his pleasure maltreat the said Maria R. Mateo, in a violation of law.

After hearing the evidence adduced during the trial of the cause, the Honorable Alberto Barretto, judge, found the
defendants guilty of the crime in the complaint, without any aggravating or extenuating circumstances, and
sentenced each of them to be imprisoned for a period of two months and one day of arresto mayor, with the
accessory penalties of the law, to pay a fine of 325 pesetas and in case of insolvency to suffer subsidiary
imprisonment, allowing to the defendants one-half of the time they had already suffered in prison, and each to pay
one-third part of the costs. From that sentence each of the defendants appealed to this court and made the
following assignments of error:

I. The trial court erred in overruling the objection of the accused to the private prosecutor's question referring
to the character of the witness.

II. The trial court erred in reaching the conclusion that the crime prosecuted was committed and that the
accused are responsible therefor.

III. The trial court erred in sentencing the accused.

IV. The trial court erred in not having the accused testify in their own behalf, as they offered to do, allowing
them to testify in the same way as he did the sole witness for the defense.

With reference to the first assignment of error, we find by referring to page 75 of the record, that Mr. Ricardo
Gonzalez Lloret, attorney for the private prosecutor, asked the witness for the defense, the said Santiago Mercado,
who is mentioned in the complaint presented in said cause, the following question:

How many times have you been convicted of assault upon other persons?

To this question, the defendant Tomas Mercado objected on the ground that the question was impertinent. Mr.
Lloret explained the purpose of his question by saying:

I wish to demonstrate that he has a pugnacious disposition. I have had occasion to defend him in various causes for
assault.

Upon the question and the objection Judge Barretto ruled that "the character of the witness has an intimate relation
or may have a strong relation with the facts being investigated in the present cause. The objection is overruled."

To that ruling of the court the defendant duly accepted. Said exception is assigned here as the first assignment of
error. The only argument which the appellant presents in support of his assignment of error is that the question had
no relation to the question which was being discussed by the court and id not tend to show that the defendants
were either guilty or not guilty of the crime charged; that questions tending to disclose the character of a witness
are immaterial. In reply to the argument of the appellant, the Attorney-General contends that the question was a
proper question, because it tended to impugn the credibility of the witness and that such questions were for that
purpose material and pertinent. It will be remembered that the complaint charged that on the occasion when the
alleged crime was committed Santiago Mercado was attempting to and did assault and illtreat one Maria R. Mateo.
In answer to said question, the witness admitted that complaint had been presented against him for the offense of
assault and battery.

The prosecution, in order to show the circumstances under which the crime charged here was actually committed,
showed that this witness, Santiago Mercado, had assaulted and illtreated Maria R. Mateo, under the circumstances
described in the complaint. That was an important fact. If the said assault did not actually take place, then the
theory of the prosecution must fail. If there was no assault or attempted assault, there was no occasion for the
alleged interference on the part of the said Claro Mercado to prevent it, and the probability of the guilt of the
defendants is greatly lessened. If the witness who had committed the alleged assault, had assaulted other persons
and had been prosecuted therefor, may that fact be considered by the court in weighing the proof and in testing
the credibility of the witness? It was an important fact to prove that Santiago Mercado, at the time and place
mentioned in the complaint, had assaulted or attempted to assault or illtreat Maria R. Mateo, in order to show that
there was occasion for the inference of Claro Mercado.lawph!1.net

Generally speaking, a witness cannot be impeached by the party against whom he has been called, except by
showing (a) that he has made contradictory statements: or (b) by showing that his general reputation for the truth,
honesty, or integrity is bad. (Sec. 342, Act No. 190.) The question to which the defendant objected neither
attempted to show that the witness had made contradictory statements nor that his general reputation for truth,
honesty, or integrity was bad. While you cannot impeach the credibility of a witness, except by showing that he has
made contradictory statements or that his general reputation for truth, honesty, or integrity is bad, yet,
nevertheless, you may show by an examination of the witness himself or from the record of the judgment, that he
has been convicted of a high crime. (Sec. 342, Act No. 190.) In the present case, the other offense to which the
question above related was not a high crime, as that term is generally used, and we assume that the phrase "high
crime," as used in section 342, is used in its ordinary signification. High crimes are generally defined as such immoral
and unlawful acts as are nearly allied and equal in guilt to felonies. We believe that the objection to the above
question was properly interposed and should have been sustained. The question now arises, did the admission of
the question prejudice the rights of the defendants? If there was proof enough adduced during the trial of the cause,
excluding the particular proof brought out by this question to show that the defendants are guilty of the crime. then
the question and answer and the ruling of the court upon the same did not affect prejudicially the interests of the
defendants. Errors committed by the trial court, which are not prejudicial to the rights of the parties, should be
disregarded by the court. In our opinion the evidence clearly shows that the witness committed the assault to which
reference is made in the complaint in the present cause. Whether he had committed other assaults or not was a
matter of no importance in the present action. The admission or rejection, therefore, of the proof to which such
question related could in no way prejudice the rights of the defendants.

The second and third assignments of error relate to the sufficiency of the proof adduced during the trial of the cause
to show that the defendants were guilty of the crime charged. A question of fact only is raised by these assignments
of error. After a careful examination of the proof, we are convinced that the same shows, beyond a reasonable
doubt, that the defendants are each guilty in the manner and form charged in the complaint. We find no reason for
modifying the conclusions of fact reached by the lower court.

With reference to the fourth assignment of error, an examination of the record shows that but one witness was
examined for the defense: that was the said Santiago Mercado. At the close of the examination of said witness, we
find the following statement by the accused:
The accused state that should they testify they would testify in the same way as the witness Santiago R. Mercado,
with whose testimony they close their evidence.

Both parties close their evidence.

Even admitting that the accused, had they testified, would have made the same declarations as those by the only
witness, Santiago Mercado, we are of the opinion that such declarations would not have been sufficient, inasmuch
as they would have added nothing to the record, except an accumulation of proof, to have shown that the
defendants were not guilty of the crime charged. We find no reason in the fourth assignments of error for modifying
the conclusions of the lower court.

After a careful examination of the record, we are persuaded that the same shows, beyond a reasonable doubt, that
the defendants were guilty of the crime charged and that the sentence of the lower court should be affirmed, with
costs. So ordered.

Arellano, C.J., Torres and Carson, JJ., concur.

4. Impeachment By Bias

U.S. v. John Clyde ABEL

469 US 45 (1984)
Impeachment By Bias
469 U.S. 45 (1984)

Justice REHNQUIST delivered the opinion of the Court.

A divided panel of the Court of Appeals for the Ninth Circuit reversed
respondent's conviction for bank robbery. The Court of Appeals held that the
District Court improperly admitted testimony which impeached one of
respondent's witnesses. We hold that the District Court did not err, and we reverse.

Respondent John Abel and two cohorts were indicted for robbing a savings and
loan in Bellflower, Ca., in violation of 18 U.S.C. §§2113(a) and (d). The cohorts
elected to plead guilty, but respondent went to trial. One of the cohorts, Kurt Ehle,
agreed to testify against respondent and identify him as a participant in the
robbery.

Respondent informed the District Court at a pretrial conference that he would

seek to counter Ehle's testimony with that of Robert Mills. Mills was not a participant
in the robbery but was friendly with respondent and with Ehle, and had spent time
with both in prison. Mills planned to testify that after the robbery Ehle had
admitted to Mills that Ehle intended to implicate respondent falsely, in order to
receive favorable treatment from the government. The prosecutor in turn
disclosed that he intended to discredit Mills' testimony by calling Ehle back to the
stand and eliciting from Ehle the fact that respondent, Mills, and Ehle were all
members of the "Aryan Brotherhood,'' a secret prison gang that required its
members always to deny the existence of the organization and to commit perjury,
theft, and murder on each member's behalf.

Defense counsel objected to Ehle's proffered rebuttal testimony as too prejudicial

to respondent. After a lengthy discussion in chambers the District Court decided
to permit the prosecutor to cross-examine Mills about the gang, and if Mills denied
knowledge of the gang, to introduce Ehle's rebuttal testimony concerning the
tenets of the gang and Mills' and respondent's membership in it. The District Court
held that the probative value of Ehle's rebuttal testimony outweighed its
prejudicial effect, but that respondent might be entitled to a limiting instruction if
his counsel would submit one to the court.

At trial Ehle implicated respondent as a participant in the robbery. Mills, called by

respondent, testified that Ehle told him in prison that Ehle planned to implicate
respondent falsely. When the prosecutor sought to cross-examine Mills
concerning membership in the prison gang, the District Court conferred again
with counsel outside of the jury's presence, and ordered the prosecutor not to use
the term "Aryan Brotherhood'' because it was unduly prejudicial. Accordingly, the
prosecutor asked Mills if he and respondent were members of a "secret type of
prison organization'' which had a creed requiring members to deny its existence
and lie for each other. When Mills denied knowledge of such an organization the
prosecutor recalled Ehle.

Ehle testified that respondent, Mills, and he were indeed members of a secret
prison organization whose tenets required its members to deny its existence and
"lie, cheat, steal [and] kill'' to protect each other. The District Court sustained a
defense objection to a question concerning the punishment for violating the
organization's rules. Ehle then further described the organization and testified that
"in view of the fact of how close Abel and Mills were'' it would have been "suicide''
for Ehle to have told Mills what Mills attributed to him. Respondent's counsel did
not request a limiting instruction and none was given.

The jury convicted respondent. On his appeal a divided panel of the Court of
Appeals reversed. The Court of Appeals held that Ehle's rebuttal testimony was
admitted not just to show that respondent's and Mills' membership in the same
group might cause Mills to color his testimony; the court held that the contested
evidence was also admitted to show that because Mills belonged to a perjurious
organization, he must be lying on the stand. This suggestion of perjury, based upon
a group tenet, was impermissible.... The court concluded that Ehle's testimony
implicated respondent as a member of the gang; but since respondent did not
take the stand, the testimony could not have been offered to impeach him and
it prejudiced him "by mere association.''

We hold that the evidence showing Mills' and respondent's membership in the
prison gang was sufficiently probative of Mills' possible bias towards respondent
to warrant its admission into evidence. Thus it was within the District Court's
discretion to admit Ehle's testimony, and the Court of Appeals was wrong in
concluding otherwise.

Both parties correctly assume, as did the District Court and the Court of Appeals,
that the question is governed by the Federal Rules of Evidence. But the Rules do
not by their terms deal with impeachment for "bias,'' although they do expressly
treat impeachment by character evidence and conduct, Rule 608, by evidence
of conviction of a crime, Rule 609, and by showing of religious beliefs or opinion,
Rule 610. Neither party has suggested what significance we should attribute to
this fact. Although we are nominally the promulgators of the Rules, and should in
theory need only to consult our collective memories to analyze the situation
properly, we are in truth merely a conduit when we deal with an undertaking as
substantial as the preparation of the Fed. Rules of Evid. In the case of these Rules,
too, it must be remembered that Congress extensively reviewed our submission,
and considerably revised it....

[I]t is permissible to impeach a witness by showing his bias under the Fed. Rules of
Evid. just as it was permissible to do so before their adoption. In this connection,
the comment of the Reporter for the Advisory Committee which drafted the Rules
is apropos:

In principle, under the Federal Rules no common law of evidence remains. "All
relevant evidence is admissible, except as otherwise provided....'' In reality, of
course, the body of common law knowledge continues to exist, though in the
somewhat altered form of a source of guidance in the exercise of delegated
powers.

Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev. 908,
915 (1978) (footnote omitted).

Ehle's testimony about the prison gang certainly made the existence of Mills' bias
towards respondent more probable. Thus it was relevant to support that
inference. Bias is a term used in the "common law of evidence'' to describe the
relationship between a party and a witness which might lead the witness to slant,
unconsciously or otherwise, his testimony in favor or against a party. Bias may be
induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest.
Proof of bias is almost always relevant because the jury, as finder of fact and
weigher of credibility, has historically been entitled to assess all evidence which
might bear on the accuracy and truth of a witness' testimony. The "common law
of evidence'' allowed the showing of bias by extrinsic evidence, while requiring
the cross-examiner to "take the answer of the witness'' with respect to less favored
forms of impeachment.

Mills' and respondent's membership in the Aryan Brotherhood supported the

inference that Mills' testimony was slanted or perhaps fabricated in respondent's
favor. A witness' and a party's common membership in an organization, even
without proof that the witness or party has personally adopted its tenets, is
certainly probative of bias.... Mills' and respondent's membership in the Aryan
Brotherhood was not offered to convict either of a crime, but to impeach Mills'
testimony. Mills was subject to no sanction other than that he might be
disbelieved. Under these circumstances there is no requirement that the witness
must be shown to have subscribed to all the tenets of the organization....

Respondent argues that even if the evidence of membership in the prison gang
were relevant to show bias, the District Court erred in permitting a full description
of the gang and its odious tenets. Respondent contends that the District Court
abused its discretion under Federal Rules of Evidence 403, because the prejudicial
effect of the contested evidence outweighed its probative value. In other words,
testimony about the gang inflamed the jury against respondent, and the chance
that he would be convicted by his mere association with the organization
outweighed any probative value the testimony may have had on Mills' bias.

Respondent specifically contends that the District Court should not have
permitted Ehle's precise description of the gang as a lying and murderous group.
Respondent suggests that the District Court should have cut off the testimony after
the prosecutor had elicited that Mills knew respondent and both may have
belonged to an organization together. This argument ignores the fact that the
type of organization in which a witness and a party share membership may be
relevant to show bias. If the organization is a loosely knit group having nothing to
do with the subject matter of the litigation, the inference of bias arising from
common membership may be small or nonexistent. If the prosecutor had elicited
that both respondent and Mills belonged to the Book of the Month Club, the jury
probably would not have inferred bias even if the District Court had admitted the
testimony. The attributes of the Aryan Brotherhood--a secret prison sect sworn to
perjury and self-protection--bore directly not only on the fact of bias but also on
the source and strength of Mills' bias. The tenets of this group showed that Mills
had a powerful motive to slant his testimony towards respondent, or even commit
perjury outright....

Respondent makes an additional argument based on Rule 608(b). That Rule

allows a cross-examiner to impeach a witness by asking him about specific
instances of past conduct, other than crimes covered by Rule 609, which are
probative of his veracity or "character for truthfulness or untruthfulness.'' The Rule
limits the inquiry to cross-examination of the witness, however, and prohibits the
cross-examiner from introducing extrinsic evidence of the witness' past conduct.

Respondent claims that the prosecutor cross-examined Mills about the gang not
to show bias but to offer Mills' membership in the gang as past conduct bearing
on his veracity. This was error under Rule 608(b), respondent contends, because
the mere fact of Mills' membership, without more, was not sufficiently probative
of Mills' character for truthfulness. Respondent cites a second error under the
same Rule, contending that Ehle's rebuttal testimony concerning the gang was
extrinsic evidence offered to impugn Mills' veracity, and extrinsic evidence is
barred by Rule 608(b)....

It seems clear to us that the proffered testimony with respect to Mills' membership
in the Aryan Brotherhood sufficed to show potential bias in favor of respondent;
because of the tenets of the organization described, it might also impeach his
veracity directly. But there is no rule of evidence which provides that testimony
admissible for one purpose and inadmissible for another purpose is thereby
rendered inadmissible; quite the contrary is the case. It would be a strange rule of
law which held that relevant, competent evidence which tended to show bias
on the part of a witness was nonetheless inadmissible because it also tended to
show that the witness was a liar.

We intimate no view as to whether the evidence of Mills' membership in an

organization having the tenets ascribed to the Aryan Brotherhood would be a
specific instance of Mills' conduct which could not be proved against him by
extrinsic evidence except as otherwise provided in Rule 608(b). It was enough
that such evidence could properly be found admissible to show bias.

The judgment of the Court of Appeals is reversed.

6. Impeachment By Prior Inconsistent Statement

Roman Villalon et al. v. IAC, Catalina Neval vda. De Ebuiza et al.

144 SCRA 443 (1986)
Impeachment By Prior Inconsistent Statement

Facts:
On May 16, 1979, a civil case for “Annulment of Deed of Sale, Recovery of
Possession and Damages” was filed by Private respondent Catalina Neval vda.
De Ebuiza against Petitioner Atty. Roman R. Villalon for the recovery of a
parcel of land located at in La Union.

The property was also the subject of a Disbarment Case previously filed on
July 22, 1975 by Private respondent Francisco Ebuiza, charging petitioner with
falsification of a deed of absolute sale of that property in his and his son’s
favor for which petitioner Vilalon claimed to have been a contingent fee for
the professional services he had rendered to Catalina Ebuiza’s parents for
successfully handling a previous case. The Disbarment case was referred by
this Court to the office of the Sol Gen for investigation where testimonial
evidence was received. The case still pends thereat.

In the course of the civil case, petitioner introduced in evidence the

testimonies of some of private respondents, namely, Neval, Ebuiza and Justina
Ebuiza San Juan (Neval et al) in the Disbarment case for the purpose of
impeaching their testimonies in the civil case.

Private respondents field a motion to strike from the records of the civil case
all matters relating to the proceedings in the Disbarment case.

The trial court issued an order and granted the Motion to strike.

Petitioner appealed to the IAC to nullify the order and to require the Trial Court
to allow impeaching evidence to remain in the records of the civil case.

IAC denied the appeal.

Issue: Whether or not the IAC committed grave abuse of discretion in

sustaining the order granted by the Trial Court.

Held: Petitioners introduced the testimonies of Private Respondents;

witnesses in the Disbarment case for purposes of impeaching their credibility
in the Civil Case. Petitioner’s claim that Private respondents witness’s have
conflicting testimonies on important factual matters in the disbarment case,
which are inconsistent with their present testimony and which would
accordingly cast a doubt on their credibility, which is a defense tool sanctioned
by Sections 15 and 16 of Rule 132.

Section 15, 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, honesty, 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 examination of the witness, or the record
of the judgment, that he has been convicted of an offense.

Section 16, 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 as to 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.

By issuing its Order to strike, the Trial Court deprived petitioners of their right
to impeach the credibility of their adverse parties’ witness by proving that on
former occasions they made statements inconsistent with the statements
made during the trial, despite the fact that such statements were material to
the issues in the civil case. The subject matter involved in the disbarment
proceedings; the alleged falsification of the deed of absolute sale in
petitioner’s favor, is the same issue raised in the civil case, wherein the
annulment of the said deed of absolute sale is sought. In fact, the court also
notes that even private respondent’s counsel touched on some matters
testified to by Neval in the Disbarment proceedings and which were the
subject of cross examination.

Decision of the IAC is set aside and directs the RTC to allow testimonies of
Catalina Neval vda. Ebuiza, Francisco Ebuiza, and Justina Ebuiza.

People v. Resabal
50 SCRA 781 (1927)
Impeachment by Prior and Inconsistent Statements
Melquiades G. Ilaw and Vicente Sotto for appellant.
Attorney-General Jaranilla for appellee.

VILLAMOR, J.:

The evidence shows, as an indisputable fact, that in the early morning of April 25, 1926, one Primo Ordiz
died at his own home in the barrio of Bogo, municipality of Maasin, Leyte, form the effects of an internal
hemorrhage caused by a sharp wound as appears from the death certificate, marked Exhibit A.

As a consequence of this, an information was filed with the Court of First Instance of Leyte in Maasin,
reading as follows:
That on or about April 25, 1926, in the municipality of Maasin, Province of Leyte, Philippine Islands, the
said accused, willfully, unlawfully and criminally, with treachery and evident premeditation, conspiring
amongst themselves and acting in common agreement and taking advantage of nocturnity, mutually aiding
each other, opened the window and killed Primo Ordiz by means of a shot from a 'Smith' 38 caliber revolver,
inflicting a wound in the upper part of the left nipple, which produced the instant death of said Primo Ordiz.

Contrary to law.

The judge who tried the case, after having carefully analyzed the evidence, reached the conclusion that the
crime committed by the accused Alejo Resabal is that of murder, provided for and penalized in article 403
of the penal Code, with the aggravating circumstances of evident premeditation, nocturnity and dwelling,
and imposed on the accused the death penalty, with the accessories of article 53 in case of pardon, and to
pay the deceased's heirs the sum of P1,000 by way of indemnity, with he costs of the action. He also ordered
that the present case be brought to this court for review, as provided for in section 50 of General Orders
No. 58.

Counsel for the defense alleges that the trial court erred in not ignoring Glicerio Orit's testimony, and in no
acquitting the accused Alejo Resabal on the ground of reasonable doubt.

The Attorney-General in turn asks that the judgment rendered, being in accordance with the evidence and
the law, be affirmed with the costs against the appellant.

Glicerio Orit testified that on the morning of April 25, 1926, the accused, armed with a revolver, invited
him to Primo Ordiz's house in order to kill the latter, and on arriving at said house, the accused went into
the ground, approached one of the windows of the house less than a meter and a half in height, opened it
and looked in. At that moment the witness left the place, and at a distance of 15 brazas heard an explosion.
Glicerio Orit's testimony as to the explosion is corroborated by the declaration of the boy Jose Ordiz, who
slept with his uncle Primo Ordiz, to the effect that early in the morning of that day he was awakened by the
noise of an explosion and saw his uncle Primon Ordiz vomiting blood and unable to speak.

It is unquestionable, from the testimony of these two witnesses and the result of the autopsy, and above all
from the finding of the revolver Exhibit B, that the weapon exhibited at the trail of the case. This revolver
was hidden by the accused on the land cultivated by the witness Carmelo Ordiz, to whom the accused
revealed it, and who, through fear of the police, transferred it to the neighboring lot, burying it at the foot
of a tree called "mabago." By following the directions of this witness, Carmelo Ordiz, the chief of police,
who investigated the case, found the revolver wrapped in two pieces of cloth Exhibits C and C-1. The
revolver was loaded with two bullets and an empty shell, and had a rusty barrel. It must be noted that Exhibit
C-1 appears to be a piece of cloth from a pair of drawers, and the chief of police who searched the house
where the accused lived, found a piece of a pair of drawers in a trunk that was in the kitchen. Upon
examination of said Exhibits F and C-1 by this court, it was found that these two pieces of cloth Exhibit F
and C-1 made a complete pair of drawers, all of which shows that the accused tore the piece of cloth Exhibits
C-1 from an old pair of drawers in order to wrap up the revolver before putting it in the place indicated by
the witness Carmelo Ordiz.

This witness testified, furthermore, that on the night of April 24, 1926, the accused believing him to be still
an enemy of the deceased Primo Ordiz, and showing him the revolver Exhibit B, invited him to accompany
him to do away with Primo Ordiz. On the other hand, the witness Vicente Ambalong corroborates Glicerio
Orits testimony to the effect that early in the morning of April 25, 1926, the accused went to the house
where the latter was sleeping to awaken him, and that he then saw the accused on the staircase, calling to
said Glicerio Orit.
And what is the motive of the crime? According to the evidence presented by the prosecution, some twenty
days before the incident the accused had a disagreement with the deceased because of the carabao that
destroyed some coconut trees belonging to the deceased Primo Ordiz. The accused requested the deceased
to return the carabao that was under his care, but the deceased refused to do so before he was paid the value
of the trees destroyed. This naturally produced resentment, which, among country people, is sufficient cause
for the commission of the act charged in the information.

The defense of alibi set up by the accused is not, in our opinion, sufficient to overthrow the evidence of the
prosecution; for taking into consideration the short distance between the deaceased's house and that in which
the accused slept on the night of the incident, the accused could easily have gone out of his house and
returned later, without having been noticed by his companions in the house, namely, his wife, his mother-
in-law, and his sister-in-law, aside from the natural interest these have in testifying in the accused's favor.

The defense argues that Glicerio Orit is not a credible witness, because of his having been excluded from
the information to be used as a witness for the prosecution; and, because, moreover, of the contradiction in
his testimony at the preliminary investigation and during the trial. We are of the opinion that the mere fact
of having been excluded from the information to be used as a witness for the Government, does not prevent
this witness from telling the truth in this case, especially in the absence of proof showing the interest he
might possibly have in testifying against the accused. Neither is the apparent contradiction which may be
noted in his declarations before the court of the justice of the peace, and before the court of first instance
sufficient to discredit his testimony, for the simple reason that this witness was not given ample opportunity,
by a reading to him of his declarations before the court of the justice of the peace, to explain the
discrepancies noted by counsel for the accused. The mere presentation of Exhibit 1, without said declaration
having been read to the witness while he testified in the Court of First Instance, is no ground for impeaching
his testimony. (U. S. vs. Baluyot, 40 Phil., 385, 406.)

The defense also impeaches Carmelo Ordiz's testimony considering the invitation which the accused
extended to him as improbable, knowing that he was a cousin of the deceased Primo Ordiz. Under ordinary
circumstances, such an attitude would appear improbable, but not so if it is considered that the accused
invited the witness in the belief that the latter was still an enemy of the deceased, on account of certain
disagreements they had over some land.

The defense also contends that the conduct of the accused in going with his family to the deceased's house
on the morning of April 25, 1926, helping in the preparations for the burial, is incompatible with his being
a criminal. It is, indeed, an old belief that the fear of the suspected party to touch the corpse was a sign of
guilt. But experience has shown that some criminals have gone to the extreme that the accused did, to avoid
all suspicion of guilt.

The evidence in the record shows that guilt of the accused beyond a reasonable doubt, and he deserves the
penalty provided for in article 403 of the Penal Code. The crime committed is murder, qualified by treachery
for, in the commission of the crime, the accused employed ways, means, and forms that tended directly and
especially to assure, it, without risk to his person from any defense the assaulted party might make.

The trial court imposed the death penalty on the accused, by reason of the aggravating circumstances of
evident premeditation, nocturnity, and dwelling, without any mitigating circumstances to offset them. On
this point the opinion of the court is divided, with the result that we cannot impose on the accused the
maximum penalty, or death, in accordance with Act No. 3104, because the vote of the members of the court
who took part in the discussion of the case, as to the justice of the imposition of the death penalty was not
unanimous. And, it being so, it is unnecessary to discuss in detail the presence of the said aggravating
circumstances.
In virtue whereof, we are of the opinion, and so hold, that the accused is guilty of the crime of murder,
committed with treachery, on the person of Primo Ordiz, and with the modification of the judgment on
review, the penalty of cadena perpetua is imposed on the accused, with the accessories of Article 54 of the
Penal Code, the judgment of the trial court being affirmed in all other respects, with the costs against the
appellant. So ordered.