Dominic Eloja Embodo LLB-3 Fiscal Blair Dura Trial Technique Mon

5:30-7:30

As part of our subject (Trial Technique), we were tasked to read different cases and take
note of how the trial proceeded, the objections used by both counsels and necessary things
that we can use as techniques in the near future if we will be successful in this endeavor.

In the various cases that I’ve read, I noticed one thing. Technicality in cases is of great
importance. A lot of cases especially drugs views the measures to be taken as prescribed by the
law to be fatal to its verdict. In one case where the chain of custody of the evidence was
questionable, the court acquitted the accused (People of the Philippines vs. Gary dela Cruz). In
drug cases, it is an elementary rule (I quote) that “the prohibited drug confiscated or recovered
from the suspect is the very same substance offered in court as exhibit and that the identity of
said drug be established with the unwavering exactitude as that the identity of the said drug be
established with the same unwavering exactitude as that requisite to make a finding of guilt”.

In the case of People of the Philippines (PP) vs. Gonzalo Baldogo, I learned that the
finding of the trial courts, its calibration of the testimonial evidence of the parties, its
assessment of the probative weight of the collective evidence of the parties and its conclusions
anchored on its findings are accorded by the appellate court great respect, if not conclusive
effect. You may be wondering why? As a general rule the court has to contend itself with the
mute pages of the original records in resolving the issues of the posed by the parties.

Now let us go to the case of PP vs. Jose Pepito D. Combate, I learned that it is an
established rule that minor and insignificant inconsistencies in the testimony tend to bolster,
rather than weaken, the credibility of witnesses for they show that the testimony is not
contrived or rehearsed. Indeed, this is very important to take note of for in most cases
(especially criminal), testimonial evidence of witnesses is of great help.

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 In the case of PP vs. Aurelio Delovino y Udal, its once again proven that denial of the
accused cannot prevail over credible testimony of complainant. Denial in itself is an inherently
weak defense and cannot prevail over the positive and credible testimony of the complainant.

In the preceding paragraph I will be discussing about the possible objection that will
come in handy during trial.

The following are list of objections we can use in trials:

1. Irrelevant. If the question may lead to admissible evidence, it is proper. If the question
is too far afield, though, a relevance objection may be warranted. The line is hard to
draw here. It boils down to a judgment call on whether the question is likely to lead to
admissible evidence.

2. Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a

deposition. For example, if your client is asked “What did Marimar tell you?” the answer
can lead to the discovery of admissible evidence. If you are taking the deposition, you
can determine based on the answer whether you should take Marimar’s deposition, and
you can then ask Marimar directly. If Marimar’s testimony is important, you can call
Marimar as a witness to testify at trial. Remember, the reason you can’t ask someone
else what Jane said at trial is that you need to be able to cross examine Marimar to
determine her credibility. (Nota Bene: There are, of course, exceptions.)

3. Assumes facts not in evidence Since this is not a trial, it is okay to assume facts that are
not in evidence. For example, it is permissible to ask “If you had known Kurimaw, how
would you have behaved differently?” However, be careful here, as this could be a
proper objection depending on the question. Do not let your client speculate and object
if the question calls for speculation. You may want to let your client answer if she knows
how she would have behaved if she had known Kurimaw.

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4. Calls for an opinion. Foundation does not need to be established to determine whether
the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and
how he or she arrived at that opinion.

Q: “Do you think that the brakes were in working order on the Nissan Navarra?”
A: “No.”
Q: “Why not?”
A: “When I drove it 1 week before the accident they were acting funny.”

The lawyer taking the deposition can obtain information that may not otherwise have
been received in written discovery and the answers can lead to discoverable evidence.

5. Speaking and coaching objections. The lawyer defending the deposition is not supposed
to be testifying. Nor should the lawyer coach the deponent with objections. The lawyer
cannot say that she does not understand the question. It is up to the deponent to ask
for clarification. “If you know” and “if you remember”are coaching objections. However,
you may ask, “Who is she?” when the deponent uses the word “she” unclearly in a
question. That is not speaking or coaching, because it does not suggest the answer.
Objections must be stated succinctly in a non-argumentative and non-suggestive
manner.

6. Privilege. This is the big one. It must be made or it is waived. This covers any privilege,
such as attorney-client and physician-client. Object if your client is asked what he said to
his lawyer. Of course, the deposing lawyer can properly ask “When you spoke with your
lawyer about this case, was anyone else in the room? Who?” Based on the answer, the
privilege may have been waived. Privilege is also the one case in which you should
instruct your client not to answer. If the opposing lawyer continues to attempt to invade
the privilege, you can threaten to terminate the deposition. If the privilege questions
continue, terminate the deposition.

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7. Form of the question. This objection is usually asserted to make a clear record. Form
questions fall in several categories. Some jurisdictions only require that the lawyer state
a general “form” objection. Others require that the type of form objection be stated as
well. Form questions are waived if they are not made during the deposition.

 Compound. If the question is compound and the person answers yes, what portion of
the question are they agreeing with? For example, if your client is asked “When you
turned left were you in the turn lane and was your signal on and was the light green and
how do you know”— object! Ask the lawyer to ask one question at a time.

 Confusing. I know I stated above that it is improper to ask for clarification, but it
depends. If the question is truly confusing, an objection may be proper.

 Calls for speculation. A form objection should also be made to a question that calls for
the witness to speculate. Be careful, though. Don’t suggest an answer, which would not
be proper.

8. Mischaracterizes earlier testimony. This is also to make sure there is a clear record. For
example, if the deponent earlier stated he was not sure of his speed, and was then
asked: “So you testified earlier that you were speeding …” it is proper to object as
mischaracterizing earlier testimony. The deponent said she did not know how fast she
was going; she did not admit she was speeding.

9. Asked and answered. This is a useful objection to make sure that your client doesn’t
give a different answer than he gave earlier in the deposition. If you don’t make the
objection and your client does provide differing information, your client loses credibility.
And the testimony can be used for impeachment at trial. The opposing lawyer may not
realize that he asked the question earlier, and making the objection can throw him off
and make him doubt himself.

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10. Harassment. If the deponent is being harassed or bullied, object. If that behavior
continues, describe the specific conduct that is objectionable for the record, and further
state on the record that you will terminate the deposition if the behavior continues.
Make sure the record will be clear to an outsider (i.e. the judge) that the witness was
being harassed or bullied. As with privilege, if the lawyer does not stop the harassment,
terminate the deposition.