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PRESENTATION OF EVIDENCE
A. Examination of Witnesses
A. EXAMINATION OF WITNESSES
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)
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. 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.
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. 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.—
.
(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. .
(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).
.
(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.
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. 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.
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. 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. 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:
(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.
(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.
(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.
(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.
(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.—
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.
Cases:
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.
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.
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:
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.
Separate Opinions
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
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
2. Leading Questions
State vs Scott
149 P2d152 (1944)
Leading Questions
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.
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? . .
.
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
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.
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.
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
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 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.
3. Cross Examination
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.
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.
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.
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.
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.
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.
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:
The Supreme Court set-aside the decision of the trial court and
remanded the case to the court of origin for further proceedings.
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.
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.
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.
4. Impeachment By Bias
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.
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.
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 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.
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.
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.
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.