Legal Technique and Logic - Notes

RULE 132 (Rules of Court)

Section 4. Order in the examination of an individual witness. The order in which the individual
witness may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.

Direct examination
Lawyers for the plaintiff (or the government) begin the presentation of evidence by
calling witnesses . The questions they ask of the witnesses are direct examination.
Direct examination may elicit both direct and circumstantial evidence.
Witnesses may testify to matters of fact, and in some instances provide opinions. They also may
be called to identify documents, pictures or other items introduced into evidence.
Generally, witnesses cannot state opinions or give conclusions unless they are experts or are
especially qualified to do so.
Witnesses qualified in a particular field as expert witnesses may give their opinion based on the
facts in evidence and may give the reason for that opinion.
Leading questions
A query that suggests to the witness how it is to be answered or puts words into the mouth of
the witness to be merely repeated in his or her response.
Leading questions should not be used on the direct examination of a witness unless necessary to
develop the persons testimony. They are permissible, however, on cross examination.
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In direct examination, one is generally prohibited from asking leading questions.

An exception to this rule occurs if one side has called a witness, but it is either
understood, or becomes clear, that the witness is hostile to the questioners side of the
controversy.
The lawyer may then ask the court to declare the person he or she has called to the stand
a hostile witness. If the court does so, the lawyer may thereafter ask the witness leading
questions during direct examination.

Cross Examinations
When the lawyer for the plaintiff or the government has finished questioning a witness, the
lawyer for the defendant may then cross-examine the witness.
Cross-examination is generally limited to questioning only on matters that were raised during
direct examination.

Leading questions are permitted

They are permitted because the examiner usually faces hostile or partial witnesses. Thus, any
witness, particularly those who are hostile and unwilling, and the adverse party who is a witness,
can be asked leading questions. What are not permitted are misleading questions.
Rule 132, Section 10. Leading and misleading questions. A question which suggests to the witness the answer
which the examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a
child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to by the witness, or
contrary to that which he has previously stated. It is not allowed. (5a, 6a, and 8a)
Essentially it is one based on wrong premise. One which assumes as true a fact not yet testified
to by the witness or contrary to what he has previously stated.

Objections - may be made by the opposing counsel for many reasons under the rules of
evidence, such as to leading questions, questions that call for an opinion or conclusion by a
witness, or questions that require an answer based on hearsay.
Most courts require a specific legal reason be given for an objection

Usually, the judge will immediately either sustain or overrule the objection:
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If the objection is sustained, the lawyer must re-phrase the question in a proper form or
ask another question.
If the objection is overruled and the witness answers the question, the lawyer who raised
the objection may appeal the judge's ruling after the trial is over.

Assailing credibility of the witness and testimony

When a lawyer calls an adverse or hostile witness (a witness whose relationship to the lawyers
client is such that his testimony is likely to be prejudicial) on direct examination, the lawyer can
ask leading questions as on cross-examination.
On cross-examination, the attorney might try to question the witness's ability to identify or
recollect or try to impeach the witness or the evidence.
Impeach in this sense means to question or reduce the credibility of the witness or evidence. The
attorney might do this by trying to show prejudice or bias in the witness, such as his or her
relationship or friendship with one of the parties, or his or her interest in the outcome of the
case.
A witness may be impeached by the party against whom he was called:
a. by contradictory evidence;
b. by evidence that his general reputation for truth, honesty or integrity is bad; or

c. by evidence that he has made at other statements inconsistent with his present
testimony.
Though not by evidence of particular wrongful acts, except that it might be shown by the
examination of the witness, or the record of the judgement, that he has been convicted of an
offense.

It is clear that when the purpose of a question is to assail the credibility of the testimony
of a witness, the rule limits cross examinations to matters stated in the direct
examination and to those connected therewith;
But when the purpose is to assail or impeach the credibility of a person or a witness,
there is no such limitations;
You can even ask leading questions that question the witness personal knowledge
making their testimony hearsay.

Witnesses may be asked if they have been convicted of a felony or a crime involving moral
turpitude (dishonesty), since this is relevant to their credibility.
Opposing counsel may object to certain questions asked on cross-examination if the questions
violate the Rules of court on evidence or if they relate to matters not discussed during direct
examination.
Cross Examination as a fundamental
There is no doubt that courts that have wide discretion in determining the extend of cross
examination and their ruling generally will not be disturbed on appeal. However, when a judge
refuses to allow cross-examination of matters, especially substantial and important matters,
stated in the direct examination or connected therewith, he commits a grave abuse of discretion
amounting to a reversible error.
(Rule 65, Rules of Court Certiorari with the Supreme Court and Appellate Court)

DISCUSSION
Tips on asking questions:

Short simple questions direct to the point

That the witness must understand the question so that he can answer properly.
Asking lengthy questions to confuse the witness will also confuse the judge.

Do not ask questions you do not know the answer to

Do not ask Ultimate questions

- These questions affect the elements of a case.

If possible, ask leading questions most of the time

Avoid making the witness repeat the testimony he gave on direct examination
- It simply enhances the credibility of his story in conducting an exploratory
examination.

Good cross examination questions never include more than one fact at a time
- Looping a standard rhetorical device would be followed by a clinching summary. Do
not resort to looping.

Avoid argumentative questions particularly those involving legal conclusions

An ordinary witness can only be examined on facts.

Always be in control
The witness should not be allowed to say whatever he wants to say. If free to do
so he can do a lot of damage that most of the time cannot be repaired.

Errors and contradictions

A way to attack the story or version of a witness to show that it is unreliable because it is full of
errors and contradictions - but the errors must be major ones touching on substantial or crucial
matters.
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If the mistakes are referring to unimportant things and circumstances they might even be
considered as indicative of truthfulness held by the SC in numerous occasions.

Honest mistakes
Errors may be honest mistakes due to the poor ability of a witness to remember or if he can
recall due to his inability to describe and narrate accurately an incident.
There are plenty of causes for these errors, the lawyers presented with a variety of subject for
cross examination.
For one he can investigate the age maturity and educational attainment of the witness to
determine his memory level and skill.

Perception vs Reality
Perception Is what an individual experience in their senses.
Reality is what actually occurred.

Lack of Personal Knowledge is another good reason to cross examine

Not being aware of the hearsay rule, witnesses often times think that there is nothing wrong in
repeating in court a statement or story they heard or was told to them by others.
It must be shown that this witness has knowledge as a result of personally seeing, feeling,
hearing, or experiencing the event in question.
At trial, the witness can be precluded from testifying about those matters or f which he has no
personal knowledge.

TYPES OF WITNESSES
Intelligent witness
If the witness is intelligent, well-prepared or well-rehearsed there is no sense, it seems, in
making him repeat his story word for word, a task he can easily do. Especially if allowed to
narrate in a chronological order, the bright witness will be able to emphasize or reinforce and
even correct, what he has already said.
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The least, ask him of his motive.

Friendly witness
They deserve a different treatment. Rapport with this witness should be cultivated by avoiding
questions that tend to embarrass, irritate or anger him. This seems obvious but there are
lawyers who fail to detect where the sympathy of a witness lies and consequently suffer from
the unwanted answers.

Biased witness
A biased witness shows favoritism toward one side of the controversy. They display a stronger
predisposition to favor a party, and entertains an improper attitude or disposition against
another. All three witnesses may appear friendly or unfriendly, intelligent or ignorant but all
have one thing in common, a strong urge or desire to help the party who presented them.

Expert witness
Section 49. Opinion of expert witness. The opinion of a witness on a matter requiring special knowledge, skill,
experience or training which he shown to possess, may be received in evidence.

This witness can be an expert in many fields. For instance, in handwriting, ballistic accounting or
land survey. He is sought mainly for his opinion on a set of facts assumed to be true of existing.
Example:
A ballistic or a medico-legal expert can render an opinion on how the victim was
shot based on the trajectory of the bullet, the distance and position of the victim.
There must be prior judicial notice claiming such witness is an expert in the field requiring
his opinion to the case at bar. The side presenting this witness is under obligation to
establish them as such, an expert.

Child witness
Everyone agrees that a child witness must be handled with care. Whether justified or not,
children, especially those of tender age, possess great credibility as witnesses and usually
enjoy the sympathy of judges.
If they have not satisfied on vital matters, it is better to leave them alone. To make them
say more, in answer to leading questions, might bring out damaging details that may be
difficult to correct.

Q: Can I file a perjury case on a previously friendly witness to a sudden shift from positive to
negative?
(Article 180-184 Book 2 Revised Penal Code)

- YES. There are four (4) elements of the crime of perjury:

a. that the accused made a statement under oath or executed an affidavit upon a
material matter;
b. that the statement or affidavit was made before a competent officer,
authorized to receive and administer oath;
c. that in that statement or affidavit, the accused made a willful and deliberate
assertion of a falsehood; and,
d. that the sworn statement or affidavit containing the falsity is required by law or
made for a legal purpose.

- What is important is the intent of the witness in using his statements to manipulate this
court.

Q: Are flawless statements reliable?

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YES, but not all the time.

Flawless statements can have a slight chance to show they are obviously rehearsed and
can question the personal knowledge of a witness if this happens their testimonies can
become hearsay.

TYPES OF EVIDENCES

Direct evidence
Support the truth of an assertion (in criminal law, an assertion of guilt or of innocence) directly,
i.e., without an intervening inference.
In direct evidence, a witness relates what he or she directly experienced. Usually the experience
is by sight or hearing, though it may come through any sense, including smell, touch or pain.

Circumstantial evidence
It is best explained by saying what it is not - it is not direct evidence from a witness who saw or
heard something. Circumstantial evidence is a fact that can be used to infer another fact.
Indirect evidence that implies something occurred but doesn't directly prove it; proof of one or
more facts from which one can find another fact; proof of a chain of facts and circumstances
indicating that the person is either guilty or not guilty.
Example:
If a man accused of embezzling money from his company had made several bigticket purchases in cash around the time of the alleged embezzlement, that would
be circumstantial evidence that he had stolen the money. The law makes no
distinction between the weight given to either direct or circumstantial evidence.
Circumstantial evidence is generally admissible in court unless the connection between the fact
and the inference is too weak to be of help in deciding the case. Many convictions for various
crimes have rested largely on circumstantial evidence.

Testimonial evidence
Or just known as testimony, it consists of statements that are made in court by witnesses and
that are offered as proof of the matter asserted, or of what is being discussed.
A witness is a person who testifies in court under oath. To testify, a witness must have personal
knowledge of the subject matter that he or she is discussing. That means that a witness must
have knowledge of an incident as perceived through his or her own senses and must remember
the incident.
Witnesses are also allowed to testify regarding their opinions, in addition to facts, but there are
restrictions. Witnesses can offer their opinions only if those opinions are rationally based on
their own perceptions.
The opinions must also be deemed to be helpful in forming an understanding of the witness's
testimony or the facts of the case.
Opinions are also allowed in the testimony of expert witness.

Documentary evidence
Is any evidence introduced at a trial in the form of documents. Although this term is most widely
understood to mean writings on paper (such as an invoice, a contract or a will), the term actually
includes any media by which information can be preserved. Photographs, tape recordings, films,
and printed emails are all forms of documentary evidence.

JUDICIAL AFFIDAVIT RULE

A.M. No. 12-8-8-SC

Justice Abad lecture on judicial affidavit

(http://www.slideshare.net/harveabella/justice-abad-judicial-affidavit-slides)

What does it do?

a. They take the place of direct testimonies;
b. They identify and authenticate documentary or objective evidence in the case.
What will it contain?
a.
b.
c.
d.

Personal circumstance of the witness;

The identity of the lawyer who conducts or supervises the examination of the witness;
The place where the examination is being held; and
A statement that the witness is answering the question under oath and that he may face
criminal liability for false testimony or perjury.

Affidavit proper that contains:

a. Numbered questions and answers - showing personal knowledge of the acts that the
witness is testifying on;
b. Questions and answers that elicit acts relevant to the issues;
c. Questions and answers that identify the attached documentary and object evidence,
and establish their authenticity in accordance with the rules of court.

What is required of a lawyer who examined the witness or supervised such examination?
He must execute a sworn attestation at the end of the judicial affidavit that:
a. He faithfully recorded or caused to be recorded the questions he asked and the
corresponding answers that the witness gave; and
b. Neither he nor any other person then present coached the witness regarding his
answers.
How and when to file?
a. To be filed with the court and copies served on the adverse party personally, or by
licensed courier service;
b. Not later than (5) five days before pre-trial or preliminary conference, or the scheduled
hearing with respect to motions and incidents.
What language is used?
a. In the language known to the witness;
b. If not English or Filipino, it is to be accompanied by a translation in English or Filipino.

What is the significance of language?

a. We are now allowing testimonies to be taken and kept in the dialect of the place;
b. Provided they are subsequently translated into English or Filipino.
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Testimonies will be quoted in pleading in their original version;

With the English or Filipino translation in the parenthesis provided by the party;
Subject to counter translation by the opposing side.