UIDE TO

A GRAPHIC G

E V I D E N C E
(A.M. NO. 19-08-
15-SC)

with Practice Tips

on Objections,
Cross-examination,
and Impeachment

EDMAR D. LERIOS
 IBP Cebu Chapter

A Graphic Guide to Evidence

with Practice Tips on Objections,
Cross-Examination, and Impeachment

eBook 2020 by Edmar D. Lerios

No part of this work may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying and recording, or by any information
storage or retrieval system without the prior approval of Edmar D. Lerios.
 Table of
CONTENTS
2019 Salient Changes to the Rules on Evidence
with Practice Tips on Objections,
Cross-examinations, and Impeachment

Admissibility & Judicial Notice.................................1

Judicial Admission & Documentary Evidence.....2
Original Document Rule..........................................3
Exceptions to the Original Document Rule........4
Duplicates & Summaries.........................................5
Parol Evidence Rule..................................................6
Witness Disqualifications........................................7
Privileged Communications...................................8
Admissions and Confessions..............................11
Hearsay Rule...........................................................13
Opinion Rule...........................................................19
Character Evidence...............................................20
Burden of Proof.....................................................22
Presumptions.........................................................23
Presentation of Evidence.....................................24
Authentication & Proof of Documents.............26
Offer and Objection..............................................27
Weight and Sufficiency of Evidence..................29
Practice Tips on Objections................................30
Practice Tips on Cross-Examination.................35
Practice Tips on Impeachment..........................42
 nt Changes
2019 Salie
EVIDENCE
Selected Amendments to the Rules on Evidence
 ADMISSIBILITY &
JUDICIAL NOTICE
RULES ON EVIDENCE
2019 Salient Changes

THE CONSTITUTION, THE

LAW, AND THE RULES OF
COURT MAY EXCLUDE AN
EVIDENCE.
Evidence is admissible when it is relevant to
the issue and not excluded by the
Constitution, the law or these Rules
(Sec. 3, Rule 128).

THE COURT WILL HEAR DURING

PRE-TRIAL AND TRIAL WHETHER
TO TAKE JUDICIAL NOTICE
ON ANY MATTER.
During the pre-trial and the trial, the court, motu
proprio, or upon motion, shall hear the parties on
the propriety of taking judicial notice of any matter
(Sec. 3, Rule 129).

IN DECIDING WHETHER TO
TAKE JUDICIAL NOTICE, THE
COURT MUST HEAR THE
PARTIES IF THE MATTER IS
DECISIVE OF A MATERIAL
ISSUE IN THE CASE.
Before judgment or on appeal, the court, motu
proprio or upon motion, may take judicial notice
of any matter and shall hear the parties thereon
if such matter is decisive of a material issue in
the case (Sec. 3, Rule 129).

E.D. LERIOS
IBP CEBU
1
 RULES ON EVIDENCE
2019 Salient Changes

JUDICIAL ADMISSION
& DOCUMENTARY EVIDENCE

ORAL OR WRITTEN JUDICIAL

ADMISSION DOESN'T NEED
PROOF.
An admission, oral or written, made by the party in the course
of the proceedings in the same case, does not require proof.
The admission may be contradicted only by showing that it
was made through palpable mistake or that the imputed
admission was not, in fact, made (Sec. 4, Rule 129).

DOCUMENTARY EVIDENCE
INCLUDES DIGITAL PHOTOS,
RECORDINGS, SOUNDS, VIDEOS,
OR THEIR EQUIVALENT.
Documents as evidence consist of writings, recordings,
photographs or any material containing letters, words, sounds,
numbers, figures, symbols, or their equivalent, or other modes
of written expression offered as proof of their contents.
Photographs include still pictures, drawings, stored images, x-
ray films, motion pictures or videos (Sec. 2, Rule 130).

BEST EVIDENCE RULE IS NOW

PROPERLY CALLED THE
'ORIGINAL DOCUMENT RULE.'
When the subject of inquiry is the contents of a
document, writing, recording, photograph or other record,
no evidence is admissible other than the original
document itself (see exceptions) (Sec. 3, Rule 130).

E.D. LERIOS
IBP CEBU CHAPTER

2
ORIGINAL DOCUMENT RULE
2019 Salient Changes

RULES ON EVIDENCE

THE DOCUMENT ITSELF OR

ITS COUNTERPART IS AN
ORIGINAL.
An 'original' of a document is the document itself or
any counterpart intended to have the same effect by a
person executing or issuing it (Sec. 4 (a), Rule 130).

PHOTO'S NEGATIVE OR
PRINTED NEGATIVE IS AN
ORIGINAL.
An 'original' of a photograph includes the negative
or any print therefrom (Sec. 4 (a), Rule 130).

ACCURATE PRINT OUT

OF A COMPUTER DATA
IS AN ORIGINAL.
If data is stored in a computer or similar device,
any printout or other output readable by sight or
other means, shown to reflect the data accurately,
is an 'original' (Sec. 4 (a), Rule 130).

E.D. LERIOS
IBP CEBU

3
 2019 SALIENT CHANGES
RULES ON EVIDENCE

Exceptions to the
Original Document Rule

1.) ORIGINAL IS LOST OR

DESTROYED
When the original is lost or destroyed, or cannot
be produced in court, without bad faith on the
part of the offeror (Sec. 3 (a), Rule 130).

2.) ORIGINAL IS IN THE

CUSTODY OR CONTROL
OF THE ADVERSE PARTY
When the original is in the custody or under the
control of the party against whom the evidence is
offered, and the latter fails to produce it after
reasonable notice, or the original cannot be
obtained by local judicial processes or
procedures (Sec. 3 (b), Rule 130).

3.) ORIGINAL CONSISTS

OF NUMEROUS ACCOUNTS
When the original consists of numerous accounts or
other documents which cannot be examined in
court without great loss of time and the fact sought
to be established from them is only the general
result of the whole (Sec. 3 (c), Rule 130) .

4.) ORIGINAL IS A
PUBLIC RECORD
When the original is a public record in the
custody of a public officer or is recorded in a
public office (Sec. 3 (d), Rule 130).

5.) ORIGINAL IS NOT

CLOSELY-RELATED TO A
CONTROLLING ISSUE
When the original is not closely-related to a
controlling issue (Sec. 3 (e), Rule 130).

E.D. LERIOS
IBP CEBU

4
 RULES OF ADMISSIBILITY

DUPLICATES & SUMMARIES

2019 Salient Changes
RULES ON EVIDENCE

A DUPLICATE IS A COUNTERPART
OR THE EXACT IMPRESSION OF
THE ORIGINAL DOCUMENT.
A 'duplicate' is a counterpart produced by the same impression
as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by
mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which
accurately reproduce the original (Sec. 4 (b), Rule 130).

A DUPLICATE IS ADMISSIBLE
AS IF ITS AN ORIGINAL DOCUMENT.
A duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the
original, or (2) in the circumstances, it is unjust or inequitable to
admit the duplicate in lieu of the original (Sec. 4 (c), Rule 130).

SECONDARY EVIDENCE

CONTENTS OF VOLUMINOUS
DOCUMENTS MAY BE PRESENTED IN A
SUMMARY,CHART, OR CALCULATION
BUT THE ORIGINALS MUST BE
AVAILABLE FOR EXAMINATION.

When the contents of documents, records, photographs, or numerous

accounts are voluminous and cannot be examined in court without
great loss of time, and the fact sought to be established is only the
general result of the whole, the contents of such evidence may be
presented in the form of a chart, summary or calculation.

The originals shall be available for examination or copying, or both, by

the adverse party at a reasonable time and place (Sec. 7, Rule 130).

E.D. LERIOS
IBP CEBU
5
 2019 SALIENT CHANGES

Parol Evidence Rule

Rules on Evidence

YOU CANNOT MODIFY THE

TERMS OF A WRITTEN
CONTRACT THROUGH ORAL
AND EXTRINSIC EVIDENCE.
When the terms of an agreement have been
reduced to writing, it is considered as containing
all the terms agreed upon and there can be, as
between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement (Sec. 10,
Rule 130).
PAROL EVIDENCE RULE IS
NOT ABSOLUTE. HERE ARE
THE EXCEPTIONS:
1. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. The failure of the written agreement to
express the true intent and agreement of the
parties thereto;
3. The validity of the written agreement; or
4. The existence of other terms agreed to by the
parties or their successors in interest after
the execution of the written agreement.

The term "agreement" includes wills.

YOU MUST PUT IN ISSUE THE

EXCEPTIONS TO PAROL
EVIDENCE RULE IN A
VERIFIED PLEADING.
A party may present evidence to modify, explain or
add to the terms of the written agreement if he or she
puts in issue in a verified pleading [the exceptions;
see exceptions above] (Sec. 10, Rule 130).

E.D. LERIOS
IBP CEBU

6
 WITNESS
DISQUALIFICATIONS
2019 Salient Changes
RULES ON EVIDENCE

DELETED RULE ON DISQUALIFICATION BY

REASON OF MENTAL INCAPACITY

MENTAL DISABILITY PER SE

DOES NOT AFFECT CREDIBILITY.
An intellectually disabled person is not, solely by this reason,
ineligible from testifying in court. He or she can be a witness,
depending on his or her ability to relate what he or she
knows.If an intellectually disabled victim's testimony is
coherent, it is admissible in court (People v. Corpuz y Flores,
G.R. No. 208013, [July 3, 2017], 812 PHIL 62-95).

DISQUALIFICATION BY REASON OF MARRIAGE

THE SPOUSE CANNOT TESTIFY

AGAINST THE OTHER.
During their marriage, the husband or the wife cannot testify
against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal
case for a crime committed by one against the other or the
latter’s direct descendants or ascendants (Sec. 23, Rule 130).

LAWYER-CLIENT PRIVILEGE

PRIVILEGED COMMUNICATION APPLIES

TO AN ATTORNEY OR A PERSON REASONABLY
BELIEVED TO BE AN ATTORNEY.
The following cannot testify as to matters learned in confidence in the
following cases: xxx

(b) An attorney or person reasonably believed by the client to be

licensed to engage in the practice of law cannot, without the consent
of the client, be examined as to any communication made by the client
to him or her, or his or her advice given thereon in the course of, or
with a view to, professional employment, nor can an attorney’s
secretary, stenographer, or clerk, or other persons assisting the
attorney be examined, without the consent of the client and his or her
employer, concerning any fact the knowledge of which has been
acquired in such capacity [see exceptions] (Sec. 24, Rule 130).

E.D. LERIOS
IBP CEBU

7
 PRIVILEGED

COMMUNICATIONS
EXCEPTIONS TO THE
LAWYER-CLIENT PRIVILEGE
(Sec. 24, Rule 130)

1 FURTHERANCE OF CRIME OR FRAUD.

If the services or advice of the lawyer were

sought or obtained to enable or aid anyone to
commit or plan to commit what the client
knew or reasonably should have known to be a
crime or fraud.

2 CLAIMANTS THROUGH THE

SAME DECEASED CLIENT.

As to communication relevant to an issue

between parties who claim through the same
deceased client, regardless of whether the
claims are by testate or intestate or by inter
vivos transaction.

3 BREACH OF DUTY BY

LAWYER OR CLIENT.

As to a communication relevant to an issue of

breach of duty by the lawyer to his or her
client, or by the client to his or her lawyer.

4 DOCUMENT ATTESTED

BY THE LAWYER.

As to a communication relevant to an issue

concerning an attested document to which
the lawyer is an attesting witness.

5 JOINT CLIENTS.

As to a communication relevant to a matter of

common interest between two or more clients
if the communication was made by any of
them to a lawyer retained or consulted in
common, when offered in an action between
any of the clients, unless they have expressly
agreed otherwise.

E.D. LERIOS
IBP CEBU
8
 2019 SALIENT CHANGES

Privileged
Communications
DOCTOR-PATIENT PRIVILEGE

PHYSICIANS, PSYCHOTHERAPISTS
OR PERSONS BELIEVED TO BE
DOCTORS CANNOT BE EXAMINED
ON CONFIDENTIAL
COMMUNICATIONS.
A physician, psychotherapist or person reasonably
believed by the patient to be authorized to practice
medicine or psychotherapy cannot in a civil case,
without the consent of the patient, be examined as to
any confidential communication made for the purpose
of diagnosis or treatment of the patient’s physical,
mental or emotional condition, including alcohol or
drug addition, between patient and his or her physician
or psychotherapist (Sec. 24, Rule 130).

PHYSICIAN-PATIENT PRIVILEGE
APPLIES TO MEMBERS OF THE
PATIENT'S FAMILY.
This privilege also applies to persons, including
members of the patient’s family, who have
participated in the diagnosis or treatment of the
patient under the direction of the physician or
psychotherapist (Sec. 24, Rule 130).

WHO IS A
PSYCHOTHERAPIST?
A “psychotherapist” is:

(a) A person licensed to practice

medicine engaged in the diagnosis or
treatment of a mental or emotional
condition, or

(b) A person licensed as a psychologist

by the government while similarly
engaged (Sec. 24, Rule 130).

E.D. LERIOS
IBP CEBU
9
 PRIVILEGED
COMMUNICATIONS
Expanded Scope of Disqualifications

MINISTER-PENITENT PRIVILEGE

A minister, priest or person reasonably believed to be so

cannot, without the consent of the affected person, be
examined as to any communication or confession made to
or any advice given by him or her, in his or her professional
character, in the course of discipline enjoined by the church
to which the minster or priest belongs (Sec. 24, Rule 130).

COMMUNICATIONS TO PUBLIC OFFICERS

A public officer cannot be examined during or

after his or her tenure as to communications
made to him or her in official confidence, when
the court finds that the public interest would
suffer by the disclosure (Sec. 24, Rule 130).

COMMUNICATIONS ARE PRIVILEGED

EVEN IN THE HANDS OF A THIRD PERSON

The communication [under Sec. 24] shall be

privileged, even in the hands of a third person who
may have obtained the information, provided that the
original parties to the communication took precaution
to protect its confidentiality (Sec. 24, Rule 130).

PARENTAL & FILIAL PRIVILEGE

No person shall be compelled to testify against his or
her parents, other direct ascendants, children or other
direct descendants, except when such testimony is
indispensable in a crime against that person or by
one parent against the other (Sec. 25, Rule 130).

PRIVILEGE RELATING TO TRADE SECRETS

A person cannot be compelled to testify about any trade

secret, unless the non-disclosure will conceal fraud or
otherwise work injustice. When disclosure is directed, the
court shall take such protective measure as the interest of
the owner of the trade secret and of the parties and the
furtherance of justice may require (Sec. 26, Rule 130).
E.D. LERIOS
IBP CEBU
10
 2019 SALIENT CHANGES

Admissions and Confessions

Rules on Evidence

AN OFFER OF COMPROMISE IS
NOT AN ADMISSION OF LIABILITY
IN CIVIL CASES.
In civil cases, an offer of compromise is not an admission
of any liability, and is not admissible in evidence against
the offeror (Sec. 28, Rule 130).

STATEMENTS IN COMPROMISE
NEGOTIATIONS ARE GENERALLY
NOT ADMISSIBLE IN CIVIL CASES.
Neither is evidence of conduct nor statements made in
compromise negotiations admissible, except evidence
otherwise discoverable or offered for another purpose, such
as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution (Sec. 28, Rule 130).

STATEMENTS MADE DURING PLEA

BARGAINING ARE NOT ADMISSIBLE.
A plea of guilty later withdrawn, or an unaccepted offer of a
plea of guilty to a lesser offense, is not admissible in evidence
against the accused who made the plea or offer. Neither is any
statement made in the course of plea bargaining with the
prosecution, which does not result in a plea of guilty or which
results in a plea of guilty later withdrawn, admissible (Sec. 28,
Rule 130).

E.D. LERIOS
IBP CEBU

11
 2019 Salient Changes

ADMISSIONS
Rules on Evidence

Admission by
co-partner or agent.

The act or declaration of a partner or agent

authorized by the party to make a statement
concerning the subject, or within the scope of
his or her authority and during the existence
of the partnership or agency, may be given in
evidence against such party after the
partnership or agency is shown by evidence
other than such or declaration. The same rule
applies to the act or declaration of a joint
owner, joint debtor, or other person jointly
interested with the party (Sec. 30, Rule 130).

Admission by
conspirator.

The act or declaration of a conspirator in

furtherance of the conspiracy and during its
existence, may by given in evidence against
the co-conspirator after the conspiracy is
shown by evidence other than such act of
declaration (Sec. 31, Rule 130).

Admission by privies.

Where one derives title to property from

another, the latter’s act, declaration, or
omission, in relation to the property, is
evidence against the former if done while the
latter was holding the title (Sec. 32, Rule 130).

E.D. LERIOS
IBP CEBU

12
 2019 Salient Changes

HEARSAY RULE
Rules on Evidence

HEARSAY IS
INADMISSIBLE
Hearsay evidence is inadmissible except as
otherwise provided in the Rules of Court
(Sec. 37, Rule 130).

WHAT IS HEARSAY?
Hearsay is a statement other than one made by the
declarant while testifying at a trial or hearing, offered
to prove the truth of the facts asserted therein.

A statement is (1) an oral or written assertion or (2) a

non-verbal conduct of a person, if it is intended by
him or her as an assertion (Sec. 37, Rule 130).
WHEN IS A
STATEMENT NOT
HEARSAY?
A statement is not hearsay if the declarant
testifies at the trial or hearing and is subject to
cross examination concerning the statement,
and the statement is...

(a) inconsistent with the declarant’s

testimony, and was given under oath subject
to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition;
NOT HEARSAY
A statement is not hearsay if the declarant testifies
at the trial or hearing and is subject to cross
examination concerning the
statement, and the statement is...

(b) consistent with the declarant’s testimony and is

offered to rebut an express or implied charge
against the declarant of recent fabrication or
improper influence or motive;
NOT HEARSAY
A statement is not hearsay if the declarant
testifies at the trial or hearing and is subject to
cross examination concerning the statement,
and the statement is...

(c) one of identification of a person made

after perceiving him or her (Sec. 37, Rule 130).

E.D. LERIOS
IBP CEBU
13
 HEARSAY RULE
EXCEPTIONS

DYING DECLARATION
The declaration of a dying person, made under
the consciousness of an impending death, may
be received in any case wherein his or her
death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of
such death (Sec. 38, Rule 130).

STATEMENT OF A
DECEDENT OR A PERSON
OF UNSOUND MIND.
In an action against an executor or administrator
or other representative of a deceased person, or
against a person of unsound mind, upon a claim
or demand against the estate of such deceased
person or against such person of unsound mind,
where a party or assignor of a party or a person
in whose behalf a case is prosecuted testifies on
a matter of fact occurring before the death of the
deceased person or before the person became of
unsound mind, any statement of the deceased or
the person of unsound mind, may be received in
evidence if the statement was made upon the
personal knowledge of the deceased or the
person of unsound mind at a time when the
matter had been recently perceived by him or her
and while his or her recollection was clear. Such
statement, however, is inadmissible if made
under circumstances indicating its lack of
trustworthiness (Sec. 39, Rule 130).

E.D. LERIOS
IBP CEBU
14
 HEARSAY RULE
EXCEPTIONS

DECLARATION
AGAINST INTEREST.
The declaration made by a person deceased or
unable to testify against the interest of the
declarant, if the fact asserted in the declaration
was at the time it was made so far contrary to the
declarant’s own interest that a reasonable person
in his or her position would not have made the
declaration unless he or she believed it to be true,
may be received in evidence against himself or
herself or his or her successors in interest and
against third persons.

A statement tending to expose the declarant to

criminal liability and offered to exculpate the
accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness
of the statement (Sec. 40, Rule 130).

ACT OR DECLARATION
ABOUT PEDIGREE.
The act or declaration of a person deceased or
unable to testify, in respect to the pedigree of
another person related to him or her by birth,
adoption, or marriage or, in the absence thereof, with
whose family he or she was so intimately associated
as to be likely to have accurate information
concerning his or her pedigree, may be received in
evidence where it occurred before the controversy,
and the relationship between the two persons is
shown by evidence other than such act or
declaration.

The word 'pedigree' includes relationship, family

genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the
names of the relatives. It embraces also facts of
family history intimately connected with pedigree
(Sec. 41, Rule 130).

E.D. LERIOS
IBP CEBU
15
 HEARSAY RULE
EXCEPTIONS

FAMILY REPUTATION OR
TRADITION REGARDING
PEDIGREE.
The reputation or tradition existing in a family
previous to the controversy, in respect to the
pedigree of any one of its members, may be
received in evidence if the witness testifying
thereon be also a member of the family, either
by consanguinity, affinity, or adoption. Entries
in family bibles or other family books or
charts, engraving on rings, family portraits
and the like, may be received as evidence of
pedigree (Sec. 42, Rule 130).

COMMON REPUTATION.
Common reputation existing previous to the
controversy, as to boundaries of or customs
affecting lands in the community and
reputation as to events of general history
important to the community, or respecting
marriage or moral character, may be given in
evidence. Monuments and inscriptions in public
places may be received as evidence of common
reputation (Sec. 43, Rule 130).

PART OF THE RES

GESTAE.
Statements made by a person while a startling
occurrence is taking place or immediately prior
or subsequent thereto, under the stress of
excitement caused by the occurrence with
respect to the circumstances thereof, may be
given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act
material to the issue, and giving it a legal
significance, may be received as part of the res
gestae (Sec. 44, Rule 130).

E.D. LERIOS
IBP CEBU
16
 HEARSAY RULE
EXCEPTIONS

RECORDS OF REGULARLY
CONDUCTED BUSINESS
ACTIVITY.
A memorandum, report, record or data
compilation of acts, events, conditions, opinions
or diagnoses, made by writing, typing, electronic,
optical or other similar means at or near the time
of or from transmission or supply of information
by a person with knowledge thereof, and kept in
the regular course or conduct of a business
activity, and such was the regular practice to
make the memorandum, report, record, or data
compilation by electronic, optical or similar
means, all of which are shown by the testimony
of the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence (Sec.
45, Rule 130).

TESTIMONY OR DEPOSITION
AT A FORMER PROCEEDING.
The testimony or deposition of a witness deceased or
out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or
otherwise unable to testify, given in a former case or
proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in
evidence against the adverse party who had the
opportunity to cross-examine him or her (Sec. 49,
Rule 130).

E.D. LERIOS
IBP CEBU
17
HEARSAY RULE
EXCEPTIONS

RESIDUAL EXCEPTION.
A statement not specifically covered by any of
the foregoing exceptions, having equivalent
circumstantial guarantees of trustworthiness, is
admissible if the court determines that (a) the
statement is offered as evidence of a material fact;
(b) the statement is more probative on the point for
which it is offered than any other evidence which
the proponent can procure through reasonable
efforts; and (c) the general purposes of these rules
and the interests of justice will be best served by
admission of the statement into evidence.

However, a statement may not be admitted under

this exception unless the proponent makes known
to the adverse party, sufficiently in advance of the
hearing or by the pre-trial stage in the case of a
trial of the main case, to provide the adverse party
with a fair opportunity to prepare to meet it, the
proponent’s intention to offer the statement and
the particulars of it, including the name and address
of the declarant (Sec. 50, Rule 130).

E.D. LERIOS
IBP CEBU
18
 2019 Salient Changes

OPINION RULE
Rules on Evidence

WITNESS' OPINION IS
NOT ADMISSIBLE.
The opinion of a witness is generally not
admissible (Sec. 51, Rule 130).

EXPERT OPINION IS
ADMISSIBLE IN EVIDENCE.
The opinion of a witness on a matter
requiring special knowledge, skill,
experience, training or education, which he
or she is shown to possess, may be received
in evidence (Sec. 52, Rule 130).

ORDINARY WITNESS CAN GIVE

OPINION ON THE IDENTITY OF
A PERSON.
The opinion of a witness for which proper
basis is given, may be received in evidence
regarding —

a) The identity of a person about whom he

or she has adequate knowledge;

ORDINARY WITNESS CAN

GIVE OPINION ON A FAMILIAR
HANDWRITING.
The opinion of a witness for which proper
basis is given, may be received in evidence
regarding —

b) A handwriting with which he or she has

sufficient familiarity;

ORDINARY WITNESS CAN

GIVE OPINION ON SANITY OF
CLOSE ACQUAINTANCE.
The opinion of a witness for which proper
basis is given, may be received in evidence
regarding —

c) The mental sanity of a person with

whom he or she is sufficiently acquainted.

ORDINARY WITNESS CAN

GIVE HER IMPRESSIONS ON
BEHAVIOR OR APPEARANCE
OF A PERSON.
The witness may also testify on his or
her impressions of the emotion, behavior,
E.D. LERIOS condition or appearance of a person (Sec.
IBP CEBU
53, Rule 130).
19
 2019 Salient Changes

CHARACTER
EVIDENCE
Rules of Evidence

CHARACTER EVIDENCE
IS GENERALLY
NOT ADMISSIBLE.
Evidence of a person’s character or a
trait of character is not admissible
for the purpose of proving action in
conformity therewith on a particular
occasion (Sec. 54, Rule 130).

CHARACTER OF THE OFFENDED

PARTY MAY BE PROVED IN
CRIMINAL CASES.
In Criminal Cases:
(1) The character of the offended party
may be proved if it tends to establish in
any reasonable degree the probability or
improbability of the offense charged.

THE ACCUSED MAY

PROVE HIS/HER GOOD
MORAL CHARACTER.
In Criminal Cases:
(2) The accused may prove his or her good
moral character, pertinent to the moral
trait involved in the offense charged.
However, the prosecution may not prove
his or her bad moral unless on rebuttal.

IN A CIVIL CASE, MORAL

CHARACTER OF A PARTY IS
ADMISSIBLE IF IT IS
PERTINENT TO THE ISSUE.
In Civil Cases:
Evidence of the moral character of a party in a
civil case is admissible only when pertinent to
the issue of character involved in the case.

E.D. LERIOS
IBP CEBU
20
 2019 Salient Changes

CHARACTER
EVIDENCE
Applicable to Criminal and Civil Cases

WITNESS' GOOD CHARACTER

IS INADMISSIBLE UNLESS
IMPEACHED.
Evidence of the good character of a
witness is not admissible until such
character has been impeached
(Sec. 54, Rule 130).

IF ADMISSIBLE, TESTIMONY
OR OPINION MAY PROVE
REPUTATION OR
CHARACTER.
In all cases in which evidence of
character or a trait of character of
a person is admissible, proof may
be made by testimony as to
reputation or by testimony in the
form of an opinion. On cross-
examination, inquiry is allowable
into relevant specific instances of
conduct (Sec. 54, Rule 130).

IF IT IS AN ELEMENT OF A
CHARGE, CLAIM OR DEFENSE,
CHARACTER MAY BE PROVED
BY SPECIFIC INSTANCES OF A
PERSON'S CONDUCT.
In cases in which character or a trait
of character of a person is an
essential element of a charge, claim
or defense, proof may also be made
of specific instances of that person’s
conduct. (Sec. 54, Rule 130).

E.D. LERIOS
IBP CEBU
21
 2019 SALIENT CHANGES

BURDEN OF
PROOF
Rules on Evidence

BURDEN OF
PROOF.
It doesn't shift.

Burden of proof is the duty of a

party to present evidence on facts
in issue necessary to establish
his or her claim or defense by the
amount of evidence required by
law. Burden of proof never shifts
(Sec. 1, Rule 131).

BURDEN OF
EVIDENCE.
It shifts.
EVIDENCE
Burden of evidence is the duty of a
party to present evidence sufficient
to establish or rebut a fact in issue
to establish a prima facie case.
Burden of evidence may shift from
one party to the other in the course
of the proceedings, depending on
the exigencies of the case (Rule 1,
Sec. 131).

E.D. LERIOS
IBP CEBU
22
 2019 SALIENT CHANGES

Presumptions
RULES OF EVIDENCE

Presumptions in Civil
Actions and Proceedings
TO REBUT OR MEET THE PRESUMPTION

In all civil actions and proceedings not otherwise

provided for by the law or these Rules, a
presumption imposes on the party against whom it is
directed the burden of going forward with evidence
to rebut or meet the presumption (Sec. 5, Rule 131).

Inconsistent Presumptions
in Civil Actions
WEIGHTIER CONSIDERATIONS OF POLICY

If presumptions are inconsistent, the presumption

that is founded upon weightier considerations of
policy shall apply. If considerations of policy are
of equal weight, neither presumption applies
(Sec. 5, Rule 131).

Presumption against an
Accused in Criminal Cases
BASIC FACT MUST BE PROVED
BEYOND REASONABLE DOUBT

If a presumed fact that establishes guilt is an

element of the offense charged, or negates a
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the
presumed fact follows from the basic fact beyond
reasonable doubt (Sec. 6, Rule 131).

E.D. LERIOS
IBP CEBU

23
 2019 SALIENT CHANGES

PRESENTATION
OF EVIDENCE
Rules on Evidence

CROSS-EXAMINATION
A WITNESS MAY BE CROSS-EXAMINED
ON ANY RELEVANT MATTER
Upon the termination of the direct examination, the witness may
be cross-examined by the adverse party on any relevant matter,
with sufficient fullness and freedom to test his or her accuracy
and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue
(Sec. 6, Rule 132).

IMPEACHMENT
A WITNESS MAY BE IMPEACHED BY
CONTRADICTORY EVIDENCE, PRIOR
INCONSISTENT STATEMENTS,
OR BAD REPUTATION
A witness may be impeached by the party against whom he or she
was called, by contradictory evidence, by evidence that his or her
general reputation for truth, honesty, or integrity is bad, or by
evidence that he or she has made at other times statements
inconsistent with his or her present testimony, but not by evidence
of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he
or she has been convicted of an offense (Sec. 11, Rule 132).

E.D. LERIOS
IBP CEBU
24
 2019 SALIENT CHANGES

PRESENTATION
OF EVIDENCE
Rules on Evidence

IMPEACHMENT BY EVIDENCE
OF CONVICTION
A WITNESS MAY BE IMPEACHED BY EVIDENCE
S/HE'S A CONVICTED CRIMINAL
For the purpose of impeaching a witness, evidence that he or she has
been convicted by final judgment of a crime shall be admitted if (a) the
crime was punishable by a penalty in excess of one year; or (b) the crime
involved moral turpitude, regardless of the penalty. However, evidence
of a conviction is not admissible if the conviction has been the subject
of an amnesty or annulment of the conviction (Sec. 12, Rul 132).

EXCLUSION AND SEPARATION

OF WITNESSES
THE COURT MAY EXCLUDE OR
SEPARATE  WITNESSES.
The court, motu proprio or upon motion, shall order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of (a) a party who is a natural person, (b) a
duly designated representative of a juridical entity which is a party to
the case, (c) a person whose presence is essential to the presentation of
the party‘s case; and (d) a person authorized by a statute to be present.

The court may also cause witnesses to be kept separate and to be

prevented from conversing with one another, directly or through
intermediaries, until all shall have been examined (Sec. 15, Rule 132).

E.D. LERIOS
IBP CEBU
25
 Rules of Evidence
AUTHENTICATION &
PROOF OF DOCUMENTS
2019 Salient Changes
CLASSES OF
DOCUMENTS
For the purpose of their
presentation in evidence,
documents are either public or
private. (Sec. 19. Rule 132).
PROOF OF
PRIVATE
DOCUMENTS
Before any private document
offered as authentic is received in
evidence, its due execution and
authenticity must be proved by any
of the following means:
a) By anyone who saw the
document executed or written;
PROOF OF
OFFICIAL
RECORD
The record of public documents
referred to in paragraph (a) of
Section 19, when admissible for
any purpose, may be evidenced by
an official publication thereof or by
a copy attested by the officer
having the legal custody of the
record, or by his or her deputy, and
accompanied, if the record is not
kept in the Philippines, with a
certificate that such officer has the
custody (Sec. 24, Rule 132).
For documents originating from a
foreign country which is not a
contracting party to a treaty or
convention referred to in the next
preceding sentence, the certificate may
be made by a secretary of the embassy
or legation, consul general, consul,
vice-consul, or consular agent or by any
officer in the foreign service of the
Philippines stationed in the foreign
country in which the record is kept, and
authenticated by the seal of his office.
PUBLIC
DOCUMENTS
Public documents include:
xxx  xxx  xxx
(c) Documents that are considered
public documents under treaties and
conventions which are in force
between the Philippines and the
country of source;
PROOF OF
PRIVATE
DOCUMENTS
b) By evidence of the genuineness
of the signature or handwriting of
the maker; or c) By other evidence
showing its due execution and
authenticity.
If the office in which the record is kept
is in a foreign country, which is a
contracting party to a treaty or
convention to which the Philippines is
also a party, or considered a public
document under such treaty or
convention pursuant to paragraph (c)
of Section 19 hereof, the certificate or
its equivalent shall be in the form
prescribed by such treaty or convention
subject to reciprocity granted to public
documents originating from the
Philippines (Sec. 24, Rule 132).
A document that is accompanied by a
certificate or its equivalent may be
presented in evidence without further
proof, the certificate or its equivalent
being prima facie evidence of the due
execution and genuineness of the
document involved. The certificate
shall not be required when a treaty or
convention between a foreign country
and the Philippines has abolished the
requirement, or has exempted the E.D. LERIOS
document itself from this formality. IBP CEBU
26
 OFFER AND
OBJECTION
2019 SALIENT CHANGES

HOW & WHEN TO

MAKE AN OFFER.
Oral Offer of Testimonial
and Documentary Evidence.

All evidence must be offered orally.

The offer of the testimony of a witness

in evidence must be made at the time
the witness is called to testify.

The offer of documentary and object

evidence shall be made after the
presentation of a party’s testimonial
evidence (Sec. 35, Rule 132).

OBJECTION TO OFFER
MUST BE MADE
ORALLY.
Objection Grounds for the Objections
, Your must be specified.
Honor.
Objection to offer of evidence must be
made orally immediately after the
offer is made.

Objection to the testimony of a

witness for lack of a formal offer must
be made as soon as the witness
begins to testify.

Objection to a question propounded

in the course of the oral examination
of a witness must be made as soon as
the grounds therefor become
reasonably apparent.

The grounds for the objections must

be specified (Sec. 36, Rule 132).

E.D. LERIOS
IBP CEBU

27
 2019 SALIENT CHANGES

OFFER AND
OBJECTIONS
RULES ON EVIDENCE

STRIKING OUT ANSWER

Should a witness answer the question before

the adverse party had the opportunity to voice
fully its objection to the same, or where a
question is not objectionable, but the answer
is not responsive, or where a witness testifies
without a question being posed or testifies
beyond limits set by the court, or when the
witness does a narration instead of answering
the question, and such objection is found to
be meritorious, the court shall sustain the
objection and order such answer, testimony or
narration given to be stricken off the record.

STRIKING OUT ANSWER

On proper motion, the court may also

order the striking out of answers which
are incompetent, irrelevant, or otherwise
improper (Sec. 39, Rule 132).

E.D. LERIOS
IBP CEBU
28
 2019 SALIENT CHANGES

WEIGHT AND
SUFFICIENCY OF
EVIDENCE
Rules on Evidence

INFERENCES CANNOT
BE BASED ON OTHER
INFERENCES. WEIGHT OF EXPERT
OPINION, HOW
Circumstantial evidence is sufficient for DETERMINED.
conviction if:
(a) There is more than one circumstance;
In any case where the opinion of an expert
(b) The facts from which the inferences are
witness is received in evidence, the court
derived are proven; and
has a wide latitude of discretion in
(c) The combination of all the circumstances
determining the weight to be given to such
is such as to produce a conviction beyond
opinion, and, for that purpose may consider
reasonable doubt.
the following:

Inferences cannot be based on other

inferences (Sec. 4, Rule 133).

WEIGHT OF EXPERT WEIGHT OF EXPERT

OPINION, HOW OPINION, HOW
DETERMINED. DETERMINED.

(a) Whether the opinion is based upon (b) Whether it is the product of
sufficient facts or data; reliable principles and methods;

WEIGHT OF EXPERT WEIGHT OF EXPERT

OPINION, HOW OPINION, HOW
DETERMINED. DETERMINED.

(c) Whether the witness has applied (d) Such other factors as the court
the principles and methods reliably to may deem helpful to make such
the facts of the case; and determination.

E.D. LERIOS
IBP CEBU
29
 i c e T ips :
Pract
OBJECTIONS
Techniques in Making Objections
Objection
EFFECTIVE WAYS
, Your
Honor. PRACTICE
T U D YTIPS
O F SOBJECTIONS ING
BEFORE EXAMS
TIMELY OBJECTIONS
Make a timely objection
or move to strike.
An objection, to be timely, must be made
before the witness answers. The lawyer may
not gamble on the answer and then object if he
is disappointed. It is only when he does not
have the opportunity to object before the
witness answers that he may obtain relief
through a motion to strike.
- Philip Tone
PRESERVING RIGHTS
ON APPEAL
Preserve your right to raise
evidentiary issues on appeal.
If you are going to object, do it right. Having
learned all possible objections, you need to
know how to make them effectively. While
very few cases are reversed on grounds that
the trial judge erred in admitting evidence,
that is no reason to throw away your right to
raise evidentiary issues on appeal. Also, if you
wait until the answer, it is too late. You must
object when the question is asked unless the
answer is too quick for normal response. Try
to be quick on your feet that you can think of
the right ground as you stand.
- J Curtin
E.D. LERIOS
IBP CEBU
30
INVOKING RULES
OF EVIDENCE
Be alert in invoking the
rules of evidence.
The rules of admission and exclusion of
evidence are not self-operating. They depend
for their successful operation on
knowledgeable trial counsel who must be alert
to invoke the rules to obtain their benefits. This
requires not only the exclusionary rules, but
also those procedural rules of evidence which
govern admitting and excluding evidence and
preserving objections.
- Mason Ladd
KNOWING THE
JUDGE
Know your judge or what
the judge is likely to do.
Knowing the judge involves knowing his
attitude toward procedure and substance.
Politeness is always a good starting point. Allow
the question to be completed before objecting
unless completing the question will itself be
prejudicial. Never address your opponent
directly. Object to the judge. If the judge is
irritated by argument, limit your objections to
succinct statement of your ground in
understandable language.
- J Curtin
KNOWING YOUR
WITNESS
Know your witness.
Witnesses may need to be treated differently at
different times in their testimony. You may
know areas to be more dangerous than others
because of your preparation. An otherwise valid
objection may warn the witness of danger and
keep him from becoming confused. The more
you know about the witness, the better you can
judge whether to object.
- J Curtin
Objection EFFECTIVE WAYS
, Your
Honor. PRACTICE
T U D YTIPS
O F SOBJECTIONS ING
BEFORE EXAMS

DECIDE WHETHER TO
OBJECT AND HOW TO
OBJECT
Consider the overall effect of the
potential objection.

KNOWING IN The simplistic notion that an objection must be

raised to every technical violation of the rules of
ADVANCE evidence should be discarded. Instead, we must
appreciate that recognizing a violation of the rules
is only the first step. You must decide whether to
Know what you intend object and, after that, how to object.
to do in advance.
- JC Conti
Objections are likely to be better if you
anticipate them. Analyze your opponent's
case. Think about the witnesses through
whom objectionable evidence may be offered. WEIGHING THINGS
Anticipation gives you an edge in objecting. Be
alert in the courtroom. Think before you
BEFORE OBJECTING
object, but object when appropriate.
Avoid irritating the judge.
- J Curtin
Once the trial begins, judges like to move things
along. Some objections will make them become
irritated or even hostile. These include hyper-
technical objections and sloppy objections, such
as objecting to leading questions when the
witness is being asked on preliminary matters.
Repetitive objections are annoying when a single
PRESERVING RIGHTS objection to a line of questioning or a continuing
objection would suffice. So, determine how much
ON APPEAL latitude the judge will permit. When you decide to
object, stand and state the objection firmly and
clearly.
Preserve your right to raise
evidentiary issues on appeal. - JC Conti

An objection must be clear, crisp, and timely.

It should be made at the earliest available
opportunity, which normally means the
moment the objectionable question is put. If
the question is proper, but the answer is
objectionable, then the correct procedure is a
motion to strike, rather than an objection. If
the question is improper, but this is not
noticed until after the answer is given, it is
technically too late to move to strike at that
point, although the judge has discretion to
grant such a motion.
- JM McLaughlin
HARMLESS EVIDENCE
Don't object when the
evidence is harmless.
Do not make objections when the evidence is
harmless. Object in open court only when you
have weighed the benefit of excluding the
evidence against the risks of making the
objection. Some lawyers object only so that they
can deliver a speech to the judge. But objections
provide opportunities to enhance your likelihood
of success. Here, the key is preparation. If you
consider all significant points of evidence before
trial, you can integrate your trial objections into
your strategy.

- JC Conti

E.D. LERIOS
IBP CEBU

31
 EFFECTIVE WAYS Objection
PRACTICE
O F S T U D YTIPS
ING
, Your
Honor.
JAMES MCELHANEY'S OBJECTION LIST, PART 1

BEFORE EXAMS

RELEVANCE
'Objection, Your Honor. Irrelevant.'

Relevance is the puzzle of circumstantial

evidence. The basic question is whether the
evidence advances the inquiry. If it does, it has
probative value. Under Philippine rules, if it has
rational probative value to the issue in
controversy, the fact is relevant.
MATERIALITY
'Objection, Your Honor.' Immaterial.'

Some jurisdictions treat materiality as

separate from relevance. Relevance is whether
the evidence advances the inquiry. Materiality
is whether this inquiry is an issue in the case.

PRIVILEGED
COMMUNICATIONS
'Objection, Your Honor. The question
calls for a privileged communication.'

Attorney-client, physician-patient, husband-wife,

and minister-penitent communications, and other
privileged communications should ring the

ORIGINAL privilege bell.

DOCUMENT RULE
'Objection, Your Honor. The
document is not the original.'

If you are going to prove the contents of a

document, you must produce the original or
account for its whereabouts.
PAROL
EVIDENCE RULE
'Objection, Your Honor. The question
violates the Parol Evidence Rule.'

The Parol Evidence Rule is actually a rule of

contract interpretation expressed in evidence
terms: prior or contemporaneous evidence is
not admissible to change a written contract
that was meant to be a complete agreement.

E.D. LERIOS
IBP CEBU

32
 EFFECTIVE WAYS Objection
PRACTICE
O F S T U D YTIPS
ING
, Your
Honor.
JAMES MCELHANEY'S OBJECTION LIST, PART 2

BEFORE EXAMS

INSUFFICIENT
FOUNDATION
'Objection, Your Honor. Lack of
foundation.'

Foundations or 'predicates' are the

preliminary facts you must prove before you

HEARSAY can introduce the evidence you are after.

'Objection, Your Honor.' Calls for a

Hearsay.'

The test is whether the out-of-court

statement (either written or oral) is being
offered to prove the truth of what it says.

LEADING
'Objection, Your Honor. Leading.

Leading questions suggest the answers to

them. They are generally not permitted in
direct examination except on preliminary
matters or to refresh the recollection of the
witness.

NARRATIVE
'Objection, Your Honor. The
question calls for a narrative.'

A witness' narrative may put into record

evidence that are inadmissible before the
other side has a chance to object. It violates
the rule that the testimony must be in a
question and answer format.

OPINION
'Objection, Your Honor. Calls for a
conclusion or an opinion.'

Lay or ordinary witnesses are supposed to

supply basic information, not interpret it. To
be admissible, a lay witness opinion has to be
both rationally based on the witness'
observations and helpful to the finder of fact.

E.D. LERIOS
IBP CEBU

33
 EFFECTIVE WAYS Objection

PRACTICE
O F S T U D YTIPS
, Your

ING
JAMES MCELHANEY'S OBJECTION LIST, PART 1
Honor.

BEFORE EXAMS

REPETITION
'Objection, Your Honor. Asked and
answered.'

The witness cannot be permitted to make

repetitive testimony. But sometimes the court
may allow some repetition if it will help reorient
the court.

ASSUMES FACT
NOT IN EVIDENCE
'Objection, Your Honor.' The question
assumes a fact not in evidence.'

A question that assumes

something not in evidence is typically multiple,
confusing, and probably tricky, to boot.
MISSTATES THE
EVIDENCE
'Objection, Your Honor. Counsel
misquotes the witness.

Misstating the evidence may mislead the judge

or the court as to what the proof actually was.
This can also be called 'improper
characterization' when the lawyer's
characterization of the evidence is unfair.

MISLEADING
'Objection, Your Honor. The question
is misleading (or confusing,
ambiguous, overbroad, vague,
unintelligible, compound).

Poorly framed questions produce all kinds of

sins. Testifying is hard enough with good
questions. It's almost impossible with bad
ones. Also, a compound question asks two or
more questions at once. Everyone gets
confused and no one knows what the answer ARGUMENTATIVE
means.
'Objection, Your Honor.
Argumentative.'

Questions are supposed to develop information

or facts. When the purpose of a question is not
to get a useful answer but rather to make a mini-
speech to the judge, it's argumentative.

E.D. LERIOS
IBP CEBU

34
 t ic e T i p s :
Prac
CROSS-
EXAMINATION
Techniques in Cross-Examination
 AREAS OF
CROSS-EXAMINATION

1 CASE SUPPORT
Bring out information favorable to your
case.

Generally, cross-examination should be your chance

to challenge the evidence of your opponent. You’ll
look for weaknesses, highlight some gaps, and
dismantle the effort of the other side to build its case.
But that’s not the only purpose of cross-examination.
You can also take a chance at bringing to light
favorable facts—that is, information that supports
your client's case.

2 LACK OF KNOWLEDGE
Show that the witness has deficient
knowledge of the facts.

Many witnesses tell stories thinking they know

everything. But if you probe deeper, you’ll realize
that there are aspects in their story that are not truly
based on their personal knowledge. This lack of
knowledge gives a lawyer an ammunition for cross
examination. You’ll subvert the reliability of a
witness’ account when you successfully expose this
to the judge.

3 CREDIBILITY
Impeach the Credibility of the Witness

You can often see credibility issues with witnesses.

Most embellish their testimonies; some mistakenly
communicate their perceptions of facts; and others
erroneously rely on their memory. There are also
witnesses who are motivated by bias. And there are
those who have prior convictions (e.g., perjury) and
therefore the testimony is not trustworthy.

E.D. LERIOS
IBP CEBU

35
 AREAS OF
CROSS-EXAMINATION

4 MISTAKEN
RECOLLECTION
Test the capacity of the witness to
accurately recall the events.

There may be questionable memory recall on the

witness’ testimony. You can attack the memory of
the witness by showing that the event did not
particularly stand out—a common occurrence—that
it was not memorable to the witness’ mind. Highlight
the fact that the witness did not record the event and
did not give statements near the time of the event.

5 CONDUCT
Show that the witness' conduct is
inconsistent to what s/he's saying.

A witness may sometimes say one way but act in

another way; a witness may say something but act in
contrast to what the witness says. You should detect
that. And when you notice it, stress it out. You have
to make an effective attack on the witness’ conduct
by emphasizing the inconsistency between what the
mouth says and what the conduct shows.

E.D. LERIOS
IBP CEBU

36
 YOUNGER'S
10 COMMANDMENTS OF
CROSS-EXAMINATION

1 BE BRIEF
The cross examiner's purpose is to obtain the
information necessary to support an argument
in summation about the credibility of the
witness. Never more than three arguments.
Two better than three. One best of all.

2 SHORT QUESTIONS,
PLAIN WORDS
For some reason, many lawyers think that the
sign of a good lawyer is the habitual use of
fancy words, long sentences, and elaborate
syntax. Simple words and simple sentences are
not only good style; they are good sense.

3 ASK ONLY LEADING

QUESTIONS
That is how a clever advocate controls a
witness, and controlling the witness, making
him say only what the advocate wants him to
say, is the whole idea of cross-examination.

4 NEVER ASK A QUESTION

TO WHICH YOU DO NOT
ALREADY KNOW THE
ANSWER
Cross-examination is not an examination
before trial. It is hardly the occasion for
discovering what the case is all about.
Exceptions:
(1) When the cross-examiner does not care
what the answer is.
(2) When the cross-examiner wants to discover
the answer by cunning use of preliminary
questions to which the answer is either
known or unimportant.

5 LISTEN TO THE ANSWER

From time to time, a witness will say
something extraordinary. It is contradicted by
other testimony; it is contrary to human
experience; it is inconsistent with the way the
universe is organized. Yet the cross-examiner
goes heedlesly on because he wasn't listening. 

E.D. LERIOS
IBP CEBU
37
 YOUNGER'S
10 COMMANDMENTS OF
CROSS-EXAMINATION

6 DO NOT QUARREL WITH

THE WITNESS
When the answer to your question is absurd,
false, irrational contradictory, or the like--stop,
sit down. Resist the temptation to respond
with “how can you say that, or how dare you
make such an outrageous claim?” The answer
to the question often elicits a response, which
explains away the absurdity and rehabilitates
the witness.

7 DO NOT PERMIT THE

WITNESS TO EXPLAIN
The good advocate allows no one but himself
to control the cross-examination. Of course,
the judge may interrupt and give the witness
an opportunity to explain. But if there's no
interruption, never permit the witness to
explain anything on cross-examination. That is
for your adversary to do.

8 AVOID REPETITION
When a lawyer asks a witness on cross-
examination merely to repeat his direct
testimony, all he accomplishes is elevation of
the witness' credibility.

9 AVOID ONE QUESTION

TOO MANY
After a while, the advocate develops an
instinct for this commandment. He cross-
examines; he asks an especially good question;
he gets an especially good answer; and he
stops. Limit questioning. Stop when you have
made your point.

10 SAVE FOR SUMMATION

Save the ultimate point for summation. A
prepared, clear and simple leading cross-
examination that does not argue the case can
best be brought together in the final argument
or written memorandum.

E.D. LERIOS
IBP CEBU
38
 Techniques for
WITNESS CONTROL
LEAD THE WITNESS.
Ask leading questions. These are questions that suggest the

1
answer to the witness. You can do this by making a statement
of fact and ending with 'Am I correct?,' ‘correct?,’ ‘right?,’ or
‘true?’ You can also do this by the tone or inflection of your
voice, such as, ‘You crossed the street?’ then changing the
intonation of your voice to elicit a ‘yes.’

USE GRADUAL
QUESTIONING

2
Your questions should create a build up to your point. You do
this by little by little, step by step, incremental questions.
Divide your outline into small component topics and achieve a
cross-examination exchange where 80-90% of the time, you're
the one talking while the witness answers you with a mere 'yes'
or 'no.'

USE PLAIN AND FACTUAL

QUESTIONS.
3 Your questions should be short and simple. Avoid complex
words, phrases and sentence structure.Ask factual questions—
using verbs and nouns, avoiding adjectives and adverbs. Don’t
characterize your questions. Don’t ask conclusory questions.

DON'T ASK CONCLUSORY

QUESTIONS.

4
Avoid the temptation to ask the 'ultimate' question--a
confrontational conclusory question that urges the witness to
explain or argue with you. For example, don't ask this kind of
question: 'In other words, Mr. Witness, you breached your agreement
with the Defendant?' or 'Come on, admit it, you were negligent, am I
right?' Save it for written memorandum or trial brief.

AVOID 'WHY' QUESTIONS.

Never ask the witness 'why' or questions that would allow
5 the witness to explain or narrate the facts. If you know the
facts before hand, use only incremental, sequential, leading
questions.

E.D. LERIOS
IBP CEBU
39
 Techniques for
WITNESS CONTROL

DON'T FISH FOR FACTS.

6
Cross-examination is not a mode of discovery. So, avoid fishing
for information in the hope that you'll get lucky; you'll stumble
upon a gem for your case. This is similar to the commandment
that 'never ask a question which you don't know the answers.'

ASSERT CONTROL IF THE

WITNESS IS NON-
RESPONSIVE
Even if you ask controlled and leading questions, often times,
7 the witness will still try to explain--evading a mere 'yes' answer
to your question. Don't argue with the witness. Don't berate the
witness. Just repeat your question word for word. If the witness
explains again. Repeat the question with a firm tone to stress
the need for a responsive answer. If the witness obstinately
refuses to answer, you have an option (as a last resort) to seek
help from the judge. The judge usually reminds the witness that
under the rules the witness must be responsive to the question.

AVOID NEGATIVES IN
CREATING YOUR
QUESTIONS.
8 Don't frame your question using negatives such as 'Isn't it
correct?' or 'Is it not true that...' This type of language confuses
the witnesses and the judge. An affirmative answer could mean
that the statement is 'not correct.' So, frame your questions in a
positive manner such 'Is it correct?' This way a 'yes' answer
means a true yes--the witness agrees with you.

RAISE YOUR HAND AS

A STOP SYMBOL.

9 Sometimes the witness just keeps on rambling even if the question

is answerable by a mere 'yes' or a short answer. If this happens, and
the judge does not like interrupting the witness, you can gently raise
your hand as if you're using a 'stop sign.' This works like a miracle
most of the time--the witness stops. But be careful with this
technique. Don't overuse this.

E.D. LERIOS
IBP CEBU
40
 CROSS-EXAMINATION
BASIC CHECKLIST
Steven Lubet

Are all of your questions leading?

Does each question you plan to ask suggest the answer
desired? If not, rephrase your questions so that they do.

Did you get in and get out?

Are you covering more than three or four topics? If so,
consider cutting down your cross to make it as short as
possible.

Are you asking only questions to which

you already know the answers?
Is there any answer that the witness might give that will
surprise you? If so, rephrase the question to eliminate this
possibility or strike the question altogether.

Are your questions short, fair,

and propositional?
Can opposing counsel object that any of your questions
are compound, cumulative, vague, argumentative or
otherwise improper? If so, rephrase those questions to
avoid unnecessary interruptions at trial.

Did you avoid asking the ultimate question?

Did you ask any questions that summarize an argument you will
make during your trial brief or argument? If so, skip the
question and save the point for final argument or memorandum.
E.D. LERIOS
IBP CEBU

41
 r a c ti c e T i ps
P
IMPEACHMENT
Techniques on Impeaching a Witness
Impeachment
TECHNIQUES
ELICIT HELPFUL FACTS BEFORE
YOU IMPEACH THE WITNESS
Before you focus on destroying the witness’
credibility, examine the possibility of building your
case through the cross-examination of an adverse
witness. A truthful witness may have information
that can help your case. If you’re effective in
achieving this, it can send a more powerful message
to the judge. And it becomes more believable.

IMPEACH THE WITNESS ONLY

ON DETERMINATIVE POINTS
Don't attack your opponent's witness on trivial
matters. Impeachment of an adverse witness is
usually confrontational. If you insist on attacking the
witness on some petty inconsistencies, you'll just
embarrass yourself. So, impeach only on matters
that will help your case or at least make a difference.

IMPEACH ONLY ON SIGNIFICANT
INCONSISTENCIES
You can attack the witness credibility by showing
that he contradicted his own words. If done right, it
has a powerful impact. Your objective here is to
bring out contradictory statements from the
witness--two statements that can damage his
credibility.

IMPEACHMENT DOESN'T
MEAN QUARRELLING WITH
THE WITNESS.
Trying to impeach the credibility of the witness can
be combative. Still, you should avoid a heated
argument just to prove your point. Don't fall into the
trap of losing control both of your emotions and the
witness' responses.

E.D. LERIOS
IBP CEBU

42
Suggested Method of Impeachment
BY PRIOR INCONSISTENT STATEMENTS
(COMMIT-CONFIRM-CONFRONT)

COMMIT TO THE
PRESENT STATEMENT
1 First, ask questions that would make the witness
commit to his or her present statement.

Q. Mr. Juan, you said in your re-direct examination that

you saw the defendant sign the Deed of Absolute Sale in
front of you, right?

A. Yes.

Q. You're certain you were present when Mr. Juan

signed the Deed of Absolute Sale marked as Exhibit 'A'?

A. Yes, I was present. I saw him sign it.

CONFIRM THE PRIOR

STATEMENT
2 Second, ask the witness to confirm his or her prior
statement.

Q. You received a Written Interrogatories from the

defendant's counsel two years ago, correct?

A. I'm not sure what you mean. I don't remember.

Q. To refresh you memory, I'm showing to you this

document dated June 8, 2018 entitled Written
Interrogatories and please browse through it. Do you
remember receiving that?

A. Yes, I remember now.

Q. You received this Written Interrogatories from the

defendant's counsel, right?

A. Yes.

Q. You answered that Written Interrogatories, correct?

A. Yes.

Q. You submitted your written answers to this Written

Interrogatories to the court?

A. Yes.

Q. You read all your statements?

A. Yes.

Q. Then you signed it?

A. Yes.

Q. You signed your Answers to the Written

Interrogatories in the office of your lawyer, right?

A. Yes.

E.D. LERIOS
IBP CEBU

43
Suggested Method of Impeachment
BY PRIOR INCONSISTENT STATEMENTS
(COMMIT-CONFIRM-CONFRONT)

Q. Your lawyer was present when you signed your

Answers to the Written Interrogatories, right?

A. Yes.

CONFRONT THE WITNESS

3 WITH THE STATEMENT
Third, confront the witness with the prior statement.
Make him/her own the statements.

Q. I'm showing to you this document entitled

Answers to Written Interrogatories, does this
document contain your written responses to
plaintiff's interrogatories?

A. Yes.

Q. Please go over that document entitled Answers to

the Written Interrogatories marked as Exhibit '10'.
The statements contained there are your answers,
am I correct?

A. Yes.

Q. That document is the Answers to the Written

Interrogatories that you signed?

A. Yes, it is.

Q. Your statements there were made under oath.

And I right?

A. I signed it. I'm not sure what you mean by under
oath.

Q. That document says that it's notarized?

A. Ah, yes.

Q. So, you made those statements under oath?

A. Yes.

Q. Please take a look at page 7 and read along with

me Answer No. 15. Your statement says, "Juan
agreed to sell the property. Even if I was not present
when he signed the Deed of Absolute Sale, I still
think that he agreed to sell his property only to me.
Besides, I'm familiar with his signature." That's your
statement, correct?

A. Yes.

In other jurisdictions, commentators suggest that you should

not ask the witness to explain the inconsistency between the prior
statement and present statement because you'll lose control of
the examination. Under Philippine rules, the cross-examiner
must allow the witness 'to explain' his prior statement.

E.D. LERIOS
IBP CEBU

44
 :
References

Irving Younger, The Irving Younger Collection:

Wisdom & Wit from the Master of Trial Advocacy
(1st edn, American Bar Association 2011).

James McElhaney, Litigation (1st edn, American

Bar Association 1995).

Steven Lubet, Modern Trial Advocacy: Analysis &

Practice (4th edn, National Institute for Trial
Advocacy 2015).

Supreme Court of the Philippines, 2019

Amendments to the Rules on Evidence (A.M. No.
19-08-15-SC).
EDMAR D. LERIOS
Member of the Board of Directors (IBP Cebu)
Chairman, Committee on MCLE & Legal Education (IBP Cebu)
Chairman, Committee on Trial Academy (IBP Cebu)
Faculty Member, University of San Carlos School of Law
Partner, Tequillo Suson Manuales Lerios & Dumaliang Law Offices

Warm acknowledgment to the following:

1. Atty. Lorena Deenia R. Manuales for the Book Cover Design
2. Atty. Kim Dente, Atty. Ceferino Miguel Ong, and Kara Marie
Bagunas for proofreading this work;
3. Owners of the icons, images, and photos; and
4. 24th Board of Directors of the Integrated Bar
of the Philippines (IBP), Cebu Chapter.

atty.edmar.lerios@gmail.com