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Section 5. Direct Examination.

Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.

A. Procedural Requirement

Offer of Testimony- the proponent shall state the substance of the intended testimony of the witness ( an outline of the major points) and the purpose of said testimony ( what the proponent intends to prove by said testimony)

a). Importance of the Offer- (i) The direct examination may be objected to by the opponent (ii) Matters not included in the offer may not be allowed to be testified on upon proper objection and (iii) to shorten the proceedings as the opponent may admit or stipulate on the matters to be testified on.

In cases under the Rules on Summary Procedure, the sworn statement of the witness must have been submitted to the court before hand

B. Importance of the Direct Examination

This is the only opportunity for the proponent to elicit from the witness all the facts which are important and favorable to him. The witness should be considered as a sponge heavy with facts. By the time the direct examination is over, all favorable facts should have been squeezed from the witness. The examination must be clear, forceful, comprehensive, and must efficiently present the facts of the case.

Effective Direct Examination

a). KEEP IT SIMPLE. Avoid these two pitfalls (i) too little time on critical points and (ii) too much time on unimportant points

b). ORGANIZE LOGICALLY. Determine the key points and organize them in a logical order. If possible resort to a chronological presentation of testimony.

c). INTRODUCE THE WITNESS AND DEVELOP HIS BACKGROUND

d). USE PRELIMINARY QUESTIONS WHICH ARE INTRODUCTORY, TRANSITION OR ORIENTING QUESTIONS

e). ELICIT SCENE DESCRIPTION

f). ELICIT GENERAL FLOWING DESCRIPTION. Let the witness paint a picture. Avoid excessive detail.

g). USE PACE IN DESCRIBING ACTION. Control the speed of the examination by eliciting testimony in small segments at the most advantageous rate. SLOW DOWN THE ACTION.

h). USE SIMPLE LANGUAGE. Choose simple words and phrases. Word choice affects answers. Avoid jargons, idioms and technical words. WHAT MATTERS AND WHAT WILL BE REMEMBERED IS NOT

HOW BEAUTIFUL AND IMPRESSIVE THE LAWYER PHRASED HIS QUESTIONS BUT WHAT THE WITNESS NARRATED.

i). HAVE THE WITNESS EXPLAIN.

j). USE NONLEADING OPEN-ENDED QUESTIONS

k). USE EXHIBITS TO HIGHLIGH AND SUMMARIZE

l). PRACTICE WITH THE WITNESS.

Sec. 6. Cross Examination.

A. Concept: The examination of the witness by the opponent after the direct examination.

B. Nature:

1. An essential part of the right to procedural due process i.e. the right of a party to confront witnesses against him face-to-face. The essence however is not actual cross examination but that a party be given the opportunity to cross examine. Hence the consequences are as follows:

a). If the opponent was never given the opportunity to cross examine a witness, the direct testimony may, on motion of the opponent, be stricken off as hearsay. b). All assertions of facts not based on the personal knowledge of the witness may also be stricken off as hearsay since the source cannot be subjected to the opportunity of cross-examination

2. :Limitations:

a). The right may however be waived expressly b). It may be lost through the fault or negligence of the opponent. c). After a witness has been cross-examined and discharged, further cross-examination is no longer a right but must be addressed to the sound discretion of the court d). The Court may limit the cross-examination if its needlessly protracted, or is being conducted in a manner which is unfair to the witness or is inconsistent with the decorum of the court, as when it degenerates into a shouting match with the witness

3. Effect of the Loss or non-completion of the cross examination

a). If the loss, in whole or in part, was due to the fault of the adverse party, the testimony of the witness is to be taken into consideration b). If the cross-examination cannot be done or completed due to causes attributable to the party offering the witness, the testimony is rendered incompetent c). If the loss or non-completion was due to the death or unavailability of the witness then that part of the testimony which was subjected to cross-examination remains admissible.

4. Character of Cross Examination: It is both an Art and a Science

a). It is an Art because it requires consummate skill which is acquired and developed. There is no standard method as it is highly personalized, subjective and be adaptive to who the witness is and to the subject of the cross examination. The length, style of questioning or approach to a witness requires intuition and understanding of human nature; of the habits, weaknesses, bias and prejudices of people; their reactions to situations, their perception of matters, and such other factors that vary according to circumstances of time, place, people and occasions. It requires the ability to think quickly, read quickly and to know when to quit. The lawyers antennae must ever be tuned in to the witness: his character, personality; mannerism, and all traits which will give a favorable clue; to the adverse counsel and to the Court.

b). Should a party cross examine or not depends on a full understanding of what to expect. The following must be considered before a party attempts to cross-examine:

i). Whether the witness has hurt the case or the impact of his testimony on the case ii). Whether the witness is important, as for example an eye witness, or a party witness iii). Whether the testimony is credible iv). The risks that the party undertakes

2. It is a science. It requires a thorough preparation and mastery of certain rules/jurisprudence on procedure in the presentation of evidence.

C. Importance and Purpose of Cross Examination Cross examination is both a weapon to destroy or weaken the testimony of the opponents witness and a tool to build up or strengthen a partys case. The conduct of cross-examination must always be directed towards achieving a specific purpose or purposes.

Constructive Cross-Examination, where the purposes are: (a) to amplify or expand the story of the witness so as to place the facts in a different light which is favorable to the party. Note that the witness of the opponent seldom volunteer facts favorable to the cross-examiner, hence the manner of questioning should be insinuating, and (b) To obtain favorable or establish additional facts favorable to the crossexamining party.

Destructive Cross-Examination The purposes are: (a) to discredit the testimony of the witness by showing its absurdity, or that it is unbelievable or contrary to the evidence (b) To discredit the witness by showing his bias, interest, lapse of or selective memory, incorrect or incomplete observation of event, and similar situations.

D. Scope of Cross Examination

1. Under section 6 the witness may be examined: (a) As to any matter stated in the direct examination (b) or any matter connected therewith (c) as to the accuracy and truthfulness and freedom of the witness from interest or bias, or the reverse and (d) upon all important facts bearing upon the issue.

2. The English Rule is followed in the Philippines: the cross examination is not confined to matters subject of the direct examination but extends to other maters, even if not inquired in the direct examination but are material to the issues. This is distinguished from the American Rule which holds that the scope of the cross-examination is confined to the facts and circumstances brought out, or connected with, matters stated in the direct examination

D. Questioning by the Court:

1. The Court may ask questions : 1. To clarify itself on certain points 2. To call the attention of counsel to points at issue that are overlooked and 3.To direct counsel to questions on matters to elicit facts and clarify ambiguous answers

2. However, the questioning by the court should not be confrontational, probing and insinuating. It should not be partisan and not over extensive. The court is not to assume the role of an advocate or prosecutor.

BASIC RULES ON CROSS EXAMINATION


1. PREPARE. Know what the witness has testified on and its relation to the case and how it affects your own evidence

2. KNOW YOUR OBJECTIVE. What are the points in the testimony of the witness which are critical and are these points to be brought out and emphasized

3. OBSERVE PACING AND PATIENCE . Do not rush the witness and avoid being over eager in bringing out an important point.

4. LEAD THE WITNESS. State the facts and let the witness ratify. Know how to lead. Use variation in the phraseology of the questions.

5. HAVE A STYLE AND ADAPT IT TO THE OCCASION. Be true to yourself and develop an approach or style suited to your personality and character. Be able to vary your style and know when is it effective to use either a booming or soft voice; to move around or to stay put; to be conversational or confrontational or tough and confident..

6. KNOW WHEN TO QUIT. Stop when (1) the witness has been discredited or made a monumental concession. There is no need for an over kill. or when the witness is killing the case or the counsel.

7. KNOW WHAT MATERIALS TO TAKE TO CONFRONT THE WITNESS. Have them be ready and easily accessible.

8. KNOW THE JUDGE. Are you making an impact or are you boring, antagonizing or confusing the Judge?

9. KNOW THE RULES OF EVIDENCE

ADDITIONAL PRACTICAL TIPS

1. BE BRIEF. Confine to the strongest points.

2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax.

3. NEVER ASK A QUESTION to which you do not already know the answer.

4. LISTEN TO THE WITNESS. Tune in if he was contradicted by another witness or prior testimony; is the testimony contrary to human experience or completely inconsistent with nature.

5. DO NOT QUARREL WITH THE WITNESS.

6. DO NOT PERMIT THE WITNESS TO EXPLAIN

7. DO NOT REPEAT HIS TESTIMONY ON DIRECT.

8. AVOID QUESTIONS TOO MANY

9. SAVE THE EXPLANATION FOR THE MEMORANDUM. Questions should not be explanations of your position.

Sec. 7. Redirect Examination by the proponent

A. Purpose and Scope:

To afford the party calling the witness to explain or amplify the testimony given on cross-examination; to explain apparent contradictions, or inconsistencies, and to rehabilitate the testimony. The scope is confined to matters taken up in the cross-examination, not those outside, which may be objected to on the ground that it is improper for redirect.

But, new matter may be inquired into provide the prior approval of the court was obtained and the testimony on the new matter must be subject to cross-examination by the opponent.

Sec. 8. Re-cross examination by the opponent.

A This is confined to matters subject of the re-direct examination.

WHAT IS AN INQUEST? An inquest is an informal and summary investigation conducted by the public prosecutor in a criminal case involving persons ARRESTED AND DETAINED WITHOUT THE BENEFIT OF A WARRANT OF ARREST issued by the court for the purpose of determining WHETHER SAID PERSONS SHOULD REMAIN UNDER CUSTODY AND CORRESPONDINGLY CHARGED IN COURT. HOW SHOULD THE COMPLAINT OR INFORMATION BE FILED WHEN THE ACCUSED IS LAWFULLY ARRESTED WITHOUT WARRANT? > The complaint or information may be filed by the prosecutor without need of preliminary investigation provided an inquest proceeding has been conducted in accordance with existing rules > In the absence of an inquest prosecutor, the offended party may file the complaint directly in court on the basis of the affidavit of the offended party or police officer.