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EVIDENCE: IX. PRESENTATION OF EVIDENCE - Coggle Diagram
EVIDENCE: IX. PRESENTATION OF EVIDENCE
A. EXAMINATION OF WITNEESES
B. RIGHT OF A WITNESS
C. ORDER OF EXAMINATION
D. IMPEACHMENT OF WITNESS
E. REFERENCE TO WRITING
REFRESHER
A WITNESS MAY BE ALLOWED TO REFRESH HIS/HER MEMORY RESPECTING A FACT
a.
BY ANYTHING WRITTEN OR RECORDED
b.
BY HIMSELF/HERSELF OR UNDER HIS/HER DIRECTION
c.
AT THE TIME WHEN THE FACT OCCURRED, OR IMMEDIATELY THEREAFTER, OR AT ANY OTHER TIME WHEN THE FACT WAS FRESH IN HIS/HER MEMORY AND
d.
HE/SHE KNEW THAT THE SAME WAS CORRECTLY WRITTEN OR RECORDED
e.
THE WRITING OR RECORD MUST BE PRODUCED AND MAY BE INSPECTED BY THE ADVERSE PARTY, WHO MAY, IF HE/SHE CHOOSES, CROSS-EXAMINE THE WITNESS UPON IT, AND MAY READ IT IN EVIDENCE.
ADVERSE PARTY MAY INQUIRE INTO WHOLE OF:
PARTIALLY GIVEN EVIDENCE
Section 17. When part of transaction, writing or record given in evidence, the remainder admissible. –
When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and
WRITINGS SHOWN TO WITNESS
MAY BE INSPECTED BY ADVERSE PARTY
Section 18. Right to inspect writing shown to witness. – Whenever a writing is shown to a witness, it may be inspected by the adverse party. (18)
PARTY WHO ADMITS PARTIAL EVIDENCE:
MAY GIVE THE REST NECESSARY TO UNDERSTAND IT
when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (17)
MAY ASK FOR THE REST
MAY GIVE THE REST NECESSARY TO UNDERSTAND
A
WITNESS MAY ALSO TESTIFY FROM SUCH A WRITING OR RECORD, THOUGH HE/SHE RETAIN NO RECOLLECTION OF THE PARTICULAR FACTS, IF HE/SHE IS ABLE TO SWEAR THAT THE WRITING OR RECORD CORRECTLY STATED THE TRANSACTION WHEN MADE; BUT SUCH EVIDENCE MUST BE RECEIVED WITH CAUTION.
REFRESHER MUST BE:
WRITTEN/RECORDED
a.
BY HIM or UED
WHEN FACT OCCURRED
a.
IMMEDIATELY
:alarm_clock:
b.
STILL FRESH IN MEMORY
:alarm_clock:
KNEW CORRECTLY RECORDED
INSPECTABLE BY ADVERSE PARTY
a.
CROSS-EXAMINED EVEN
b.
READ IN EVIDENCE EVEN
REFRESHERS ARE INADMISSIBLE
The memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory
HOW TO IMPEACH WITNESS
EVIDENCE
By contradictory evidence;
GENERAL REPUTATION IS FOR DOING SOMETHING BAD
STATEMENTS INCONSISTENT WITH PRESENT TESTIMONY
a.
LAY PREDICATE
b.
CHANCE TO:
-i.
RECOLLECT
-ii.
EXPLAIN INCONSISTENCIES
c.
NO REASONABLE EXPLANATION FOR INCONSISTENCIES
By evidence that his/her general reputation
for truth, honesty or integrity is bad;
c. By evidence that he/she has made at other
times statements inconsistent with his
present testimony
EVIDENCE OF FINAL CONVICTION SHALL BE ADMITTED IF:
1-YEAR ABOVE PENALTY
MORAL TURPITUDE
a.
REGARDLESS OF PENALTY
Section 12. Impeachment by evidence of conviction of crime. – For the purpose of impeaching a witness, evidence that he or she has been convicted by fi nal judgment of a crime shall be admitted if (a) the crime was punishable by a penalty in excess of one [(1)] year; or (b) the crime involved moral turpitude, regardless of the penalty.
CANNOT IMPEACH OWN WITNESS
Section 13. Party may not impeach his or her own witness. – Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10 of this Rule, the party presenting the witness is not allowed to impeach his or her credibility.
HOW TO IMPEACH WITNESS:
RELATE STATEMENT TO HIM/HER
a.
WITH CIRCUMSTANCES OF TIMES, PLACES, & PERSONS PRESENT
ASK IF HE/SHE MADE SUCH STATEMENTS.
ALLOW HIM TO EXPLAIN THEM
Section 14. How witness impeached by evidence of inconsistent statements. – Before a witness can be impeached by evidence that he or she has made at other times statements inconsistent with his or her present testimony, the statements must be related to him or her, with the circumstances of the times and places and the persons present, and he or she must be asked whether he or she made such statements, and if so, allowed to explain them. If the statements be in writing[,] they must be shown to the witness before any question is put to him or her concerning them. (13a) [Section 14. Evidence of good character of witness. – (Incorporated in Section 54, Rule 130)]
SEPARATION OF WITNESSES
BY M/MP
Section 15. Exclusion and separation of witnesses. – The court, motu proprio or upon motion, shall order witnesses excluded so that they cannot hear the testimony of other witnesses.
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IF STATEMENT IN WRITING:
SHOW TO WITNESS
a.
BEFORE QUESTIONING HIM/HER CONCERNING THIS
EXCEPT IF:
UNWILLING/HOSTILE
a.
DECLARED BY COURT
b.
UPON SHOWING OF:
-i.
ADVERSE INTEREST
ii.
UNJUSTIFIED RELUCTANCE TO TESTIFY
;
or
iii.
MISLEADING PARTY INTO CALLING HIM ON WITNESS STAND
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his or her adverse interest, unjustified reluctance to testify, or his or her having misled the party into calling him or her to the witness stand.
HOW DECLARED:
BY PARTY PRESENTING HIM
IN ALL RESPECTS HE/SHE HAS BEEN CALLED BY ADVERSE PARTY
The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him or her in all respects as if he or she had been called by the adverse party,
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BUT NOT ADMISSIBLE IF:
AMNESTY
ANNULMENT
However, evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or annulment of the conviction. (n)
NOT BY EVIDENCE OF PARTICULAR WRONGFUL ACTS
But NOT by evidence of particular wrongful
acts,
UNLESS THERE WAS CONVICTION, SHOWN BY
EXAMINATION
RECORD
EXCEPT that it may be shown by the
examination of the witness, or the record of the
judgment, that he/she has been convicted of an
offense.
[Sec. 11, Rule 132
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LAY THE PREDICATE BEFORE IMPEACHING ON CONTRADICTING STATEMENTS:
GROUND FOR IMPEACHING (LAYING THE PREDICATE)
WITNESS MUST BE GIVEN CHANCE TO:
a.
RECOLLECT
b.
EXPLAIN INCONSISTENCIES BETWEEN 2 STATEMENTS
ATTENTION MUST BE DIRECTED TO THE INCONSISTENCIES
NO REASONABLE EXPLANATION FOR INCONSISTENCIES
Before the credibility of a witness and the truthfulness of his testimony can be impeached by evidence consisting of his prior statements which are inconsistent with his present testimony, the cross-examiner must lay the predicate or the foundation for impeachment and thereby prevent an injustice to the witness being cross-examined. o US v. Baluyot:
This process of cross-examining a witness upon the point of prior contradictory statements is called in the practice of the American courts "laying a predicate" for the introduction of contradictory statements.
Unless a ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of the court.
The witness must be given a chance to recollect and to explain the apparent inconsistency between his two statements and state the circumstances under which they were made.
(People v. Castilliano)
It is only when no reasonable explanation is given by a witness in reconciling her conflicting declarations that she should be deemed impeached
EVIDENCE OF ONE'S GENERAL REPUTATION MUST BE NOT REMOTE FROM TRIAL :alarm_clock:
Evidence of one’s character or reputation must be confined to a time not too remote from the time in question. In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit. • The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a witness has been arrested or that he has been charged with or prosecuted for a criminal offense or confined in jail for the purpose of impairing his credibility. The provision says that a witness may not be impeached by evidence of particular wrongful acts rather it requires conviction.
HOW TO IMPEACH WITNESS
EVIDENCE
By contradictory evidence;
GENERAL REPUTATION IS FOR DOING SOMETHING BAD
STATEMENTS INCONSISTENT WITH PRESENT TESTIMONY
a.
LAY PREDICATE
b.
CHANCE TO:
-i.
RECOLLECT
-ii.
EXPLAIN INCONSISTENCIES
c.
NO REASONABLE EXPLANATION FOR INCONSISTENCIES
EXCEPT IF:
UNWILLING/HOSTILE
a.
DECLARED BY COURT
b.
UPON SHOWING OF:
-i.
ADVERSE INTEREST
ii.
UNJUSTIFIED RELUCTANCE TO TESTIFY
;
or
iii.
MISLEADING PARTY INTO CALLING HIM ON WITNESS STAND
ORDER OF EXAMINING INDIVIDUAL WITNESS
DIRECT EXAMINATION BY THE PROPONENT;
CROSS-EXAMINATION BY THE OPPONENT;
RE-DIRECT EXAMINATION BY THE PROPONENT;
RE-CROSS EXAMINATION BY THE OPPONENT.
Section 4. Order in the examination of an individual witness. – The order in which an 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. (4)
DIRECT EXAMINATION IS EXAM-IN-CHIEF OF WITNESS BY PRESENTER
Section 5. Direct examination. – Direct examination is the examination-in-chief of a witness by the party presenting him or her on the facts relevant to the issue. (5a)
CROSS-EXAMINE MAY COVER:
ANY RELEVANT MATTER
a.
SUFFICIENT FULLNESS & FREEDOM
the witness may be cross examined by the adverse party on any relevant matter with sufficient fullness and freedom
RE-DIRECT:
GENERALLY TACKLING ONLY CROSS-EXAMINATION
a.
UNLESS ALLOWED BY COURT'S DISCRETION
Re-direct examination—re-examination of the witness by the party calling him/her
• Purpose: to explain or supplement his/her answers given during the cross-examination
• Questions on matters not dealt with during the cross-examination may be allowed by the court in its discretion. [Sec. 7, Rule 132
RE-CROSS MAY COVER:
MATTERS STATED IN RE-DIRECT
OTHER MATTERS ALLOWED BY COURT IN ITS DISCRETION
Section 8. Re-cross[-]examination. – Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his or her re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (8a)
AFTER EXAMINATION OF WITNESS BY BOTH SIDES, SUCH CANNOT BE RECALLED WITHOUT LEAVE OF COURT
Section 9. Recalling witness. – After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court.
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PURPOSE: TO TEST
ACCURACY
TRUTHFULNESS
FREEDOM FROM INTEREST/BIAS
a.
REVERSE
ELICIT ALL IMPORTANT FACTS
a.
BEARING UPON ISSUE
to test the witness’ accuracy, truthfulness and freedom from interest or bias, or the reverse; and to elicit all important facts bearing upon the issue [Sec. 6, Rule 132]
NOT LIMITED TO MATTERS OF DIRECT EXAMINATION
From this provision it may clearly be inferred that a party may cross examine a witness on matters not embraced in his direct examination.
DOES NOT MEAN CROSS-EXAMINER ADOPTS THE WITNESS AS HIS OWN
But this does not mean that a party by doing so is making the witness his own in accordance with section 83 of said Rules
WAIVABLE ANG CROSS, AS WHEN:
FAILURE TO AVAIL HIMSELF = WAIVED
The right to cross-examine is NOT an absolute right which a party can demand at all times. The right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination.
Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record.
WAITING 1 YEAR AFTER FINALITY OF CA DECISION BEFORE SETTING HEARING
The failure to cross-examine was imputable to the respondents because they waited 1 year after the finality of the CA decision before moving to set the case for hearing, even knowing that Ruperto was of old age and Jose’s migration was imminent. Therefore, their testimonies should not be wholly excluded and should be admitted insofar as the loss of cross-examination is shown to be not a material loss.
(Fulgado v. CA)
ABSENT CROSS-EXAMINATION, DIRECT EXAMINATION SHOULD BE EXPUNGED
a.
EVEN IF POSTPONED 13 TIMES, JUDGE CANNOT DISALLOW CROSS
In the absence of cross-examination, which is prescribed by statutory norm and jurisprudential precept, the direct examination of the witness should have been expunged from the records, in which case, the trial court would have had no valid basis to deny the demurrer to evidence
The continuation of the hearing was postponed 13 times, and witness Guiraldo was never cross-examined. The prosecution finally rested its case. Judge Alumbres refused to give opportunity for the PAO lawyer to cross-examine the witnesses. Judge was in GAD for denying cross-examination.
(People v. Ortillas)
WAIVABLE ANG CROSS, AS WHEN:
FAILURE TO AVAIL HIMSELF = WAIVED
IMMINENT IMMIGRANT + WAITING 1 YEAR AFTER FINALITY OF CA DECISION BEFORE SETTING HEARING
LEADING QUESTION ALLOWED WHEN:
CROSS-EXAM
PRELIMINARY MATTERS
DIFFICULTY GETTING DIRECT & INTELLIGIBLE ANSWERS FROM WITNESS
a.
FEEBLE MIND
b.
IGNORANT
c.
TENDER YEARS
d.
DEAF-MUTE
UNWILLING/HOSTILE WITNESS
ADVERSE PARTY WITNESS
WITNESS MUST ANSWER QUESTIONS,
EVEN IF ESTABLISHING A CLAIM AGAINST HIM/HER**
Rule 132 Section 3. Rights and obligations of a witness. – A witness must answer questions, although his or her answer may tend to establish a claim against him or her.
WITNESS HAS RIGHT TO BE:
However, it is the right of a witness:
PROTECTED FROM IMPROPER/INSULTING QUESTIONS:
(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
NOT DETAINED LONGER THAN JUSTICE REQUIRES
(2) Not to be detained longer than the interests of justice require;
EXAMINED ONLY ON PERTINENT MATTERS
(3) Not to be examined except only as to matters pertinent to the issue;
NOT GIVE ANSWER SUBJECTING HIM TO PENALTY FOR OFFENSE
a.
UNLESS LAW PROVIDES OTHERWISE
(4) Not to give an answer which will tend to subject him or her to a penalty for an offense unless otherwise provided by law; or
NOT GIVE ANSWER TENDING TO DEGRADE HIS REPUTATION
a.
UNLESS IT'S THE FACT
-i.
AT ISSUE
-ii.
FROM WHICH FACT AT ISSUE IS PRESUMED
(5) Not to give an answer which will tend to degrade his or her reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed.
WITNESS MUST ANSWER TO FACT OF HIS/HER
PREVIOUS FINAL CONVICTION FOR AN OFFENSE
But a witness must answer to the fact of his or her previous fi nal conviction for an off ense. (3a)
IMPROPER
DETAINED
PERTINENT
PENALTY
REPUTATION
PARTIES HAVE A RIGHT TO COMPEL ATTENDANCE OF MATERIAL WITNESS
Keh had died and so could not give testimony that Lee’s other children were not hers. The Lee-Keh children have, therefore, a legitimate reason for seeking Tiu’s testimony and, normally, the RTC cannot deprive them of their right to compel the attendance of such a material witness
INABILITY TO ATTEND MUST BE PROVEN
Regarding the physical and emotional punishment that would be inflicted on Tiu if she were compelled at her age and condition to come to court to testify, Emma Lee must establish this claim to the satisfaction of the trial court
(Lee v. CA)
PARTIES HAVE A RIGHT TO COMPEL ATTENDANCE OF MATERIAL WITNESS
a.
INABILITY TO ATTEND MUST BE PROVEN
EXAMINATION OF WITNESS HOW DONE:
IN OPEN COURT
UNDER OATH
Rule 132 Section 1. Examination to be done in open court. – The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affi rmation.
PROCEEDINGS TO BE RECORDED INCLUDES:
QUESTIONS ASKED TO WITNESS
a.
ANSWERS THERETO
JUDGE'S STATEMENTS
STATEMENTS OF ANY PARTY, COUNSEL, WITNESS WITH REFERENCE TO CASE
Proceedings to be recorded, including a. the questions propounded to a witness and his answers thereto b. the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case by means of shorthand or stenotype or by other means of recording found suitable by the court [Sec. 2, Rule 132
TRANSCRIPT IS PRIMA FACIE CORRECT
A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings
RECORDED ALL + PRIMA FACIE CORRECT:
QUESTIONS
ANSWERS
STATEMENTS
HOW TESTIMONY IS GIVEN
ORALLY
EXCEPT IF:
INCAPACITATED TO SPEAK
; OR
Q CALLS FOR DIFF MODE OF ANSWER
Unless the witness is incapacitated to speak, or the question calls for a diff erent mode of answer, the answers of the witness shall be given orally. (1)
OPPORTUNITY TO CROSS-EXAMINE
The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination.
(People v. Estenzo)