1. Examination of a Witness

DEPOSITION

Taking of the testimony of any person, whether he/she be a party or not, but at the instance of a party to the action. This testimony is taken out of court, and it may either be an oral examination or a written interrogatory.

It is a testimony of a witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories. (People v. Webb, G.R. No. 132577, 1999)

It is a way for either party to compel the other to disgorge whatever facts he has in his possession. (Republic v. Sandiganbayan, G.R. No. 90478, 1991)

Credibility of a Witness<br>

Credibility has nothing to do with the law or the rules. It refers to the weight and trustworthiness or reliability of the testimony. [Riano, 185, 2016 Ed.]

Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court as it is in the best position to observe his demeanor and bodily movements. [Llanto v. Alzona, 450 SCRA 288 (2005)]

Disqualifications of Witnesses

Examination of Witness

Electronic Testimony - After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. (REE, Rule 10, Sec. 1)

Transcript of electronic testimony - When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. (REE, Rule 10, Sec. 2)

Uses; Scope of Examination

A party shall NOT be deemed to make a person his/her own witness for any purpose by taking his/her deposition (Rule 23, Sec. 7) EXCEPT when the deposition is introduced in evidence, then he/she will be deemed to have made the deponent his/her witness (Rule 23, Sec. 8).

The exception will NOT apply if the deposition used is that of an opposing party or the deposition is used to impeach or contradict the deponent – Deponent still NOT a witness of the party taking the deposition.

A deposition is not to be used when the deponent is at hand. (Sales v. Sabino, G.R. No. 133154, 2005)

Scope of Examination

May be any matter not privileged and which is relevant to the subject of the pending action, including:

• Claim or defense of any other party;
• Existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and
• Identity and location of persons having knowledge of relevant facts.

In civil cases, a person may not use the right against self-incrimination as an objection to make a deposition. Only when an incriminating question is asked can a person invoke the right. (Rosete v. Lim G.R. No. 136051, June 8, 2006)

The Taking of Deposition may be terminated or Its Scope Limited at ANY TIME DURING the Taking of the Deposition

• Upon motion or petition of any party or of the deponent; and
• Upon showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party.

WRITTEN INTERROGATORIES

Its purpose is to elicit material and relevant facts from any adverse party.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (Sps. Afulugencia v. Metrobank, G.R. No. 185145, February 5, 2014)

Since the calling party is deemed bound by the adverse party’s testimony, compelling the adverse party to take the witness stand may result in the calling party damaging its own case. … Another reason for the rule is that by requiring prior written interrogatories, the court may limit the inquiry to what is relevant, and thus prevent the calling party from straying or harassing the adverse party when it takes the latter to the stand. (Sps. Afulugencia v. Metrobank, G.R. No. 185145, February 5, 2014)

One-day examination of witness rule

The Court shall strictly adhere to the rule that a witness has to be fully examined in 1 day.

Answers shall be given orally, unless the<br>

• witness is incapacitated to speak, or
• question calls for a different mode of answer [Sec. 1, Rule 132]

Proceedings to be recorded, including

• the questions propounded to a witness and his answers thereto
• 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]

One-Day Examination of Witness Rule<br>

A witness has to be fully examined in one (1) day only. It shall be strictly adhered to subject to the courts' discretion during trial on whether or not to extend the direct and/or cross- examination for justifiable reasons. [A.M. No. 03-1-09-SC]

Order in the Examination of an Individual Witness

• Direct examination by the proponent;
• Cross-examination by the opponent;
• Re-direct examination by the proponent;
• Re-cross examination by the opponent. [Sec. 4, Rule 132]

Direct examination — examination-in-chief of a witness by the party presenting him/her on the facts relevant to the issue [Sec. 5, Rule 132]

Cross-examination — the witness may be cross examined by the adverse party on any relevant matter with sufficient fullness and freedom

• Purpose: 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]

Right to cross-examination<br>

Cross-examination is the most reliable and effective way known of testing the credibility and accuracy of testimony. This is an essential element of due process. [Herrera, citing Alford v. US (1931)]

The right to cross-examine under the constitution is superior to technical rules on evidence. [Herrera, citing People v. Valero, G.R. No. L-45283-84 (1982)]

Effect of denial of right to cross-examine<br>

Most courts require that the testimony given on direct examination be stricken off – provided the unavailability of the witness is through no fault of the party seeking to cross-examine. [Herrera]

Cross-examination must be completed or finished. When cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. [Herrera, citing Ortigas, Jr. v. Lufthansa German Airlines, G.R. No. L-28773 (1975)]

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-examination — re-cross- examination of the witness by the adverse party on matters stated in his/her re-direct and on other matters allowed by the court in its discretion [Sec. 8, Rule 132]

Recalling the witness After examination by both sides has been concluded, the witness cannot be recalled without leave of court. [Sec. 9, Rule 132] Why conducted

• Particularly identified material points were not covered in cross-examination
• Particularly described vital documents were not presented to the witness
• Cross-examination was conducted in so inept a manner as to result in a virtual absence thereof [People v. Rivera, G.R. No. 98376 (1991)]

Leading Questions and Misleading

Leading question: A question which suggests to the witness the answer which the examining party desires

General rule: Not allowed

Except:

• On cross examination;
• On preliminary matters;
• When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
• Of an unwilling or hostile witness; or
• Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party [Sec. 10, Rule 132]

Misleading question: One which assumes as true a fact not yet testified to by the witness, or contrary to that which he/she has previously stated. It is not allowed. [Sec. 10, Rule 132]

Impeachment of Witness

iii. Own witness<br>

Party may not impeach his own witness EXCEPT with respect to

• An unwilling or hostile witness; or
• A witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party

Who else is allowed in the proceeding:

• prosecutor
• defense counsel
• guardian ad litem
• accused, subject to subsection (e)
• if there is evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room where the deposition is conducted
• in case of exclusion of the accused, the court shall order the testimony of the child to be taken by live-link TV in accordance with Sec. 25
• it is not necessary for the child to be able to view an image of the accused
• other persons whose presence is determined by the court to be necessary for the welfare and well-being of the child
• one or both of his support persons, the facilitator and interpreter, if any
• court stenographer; and
• persons necessary to operate the videotape equipment [Sec. 27(c)]

Rights of the accused during trial, especially the right to counsel and confront and cross- examine the child, shall NOT BE VIOLATED during the deposition.

If, at the time of the trial, the court finds that the child is unable to testify for a reason stated in Sec. 25(f) of this Rule or is unavailable for any reason described in Rule 23, Sec 4(c) of the Rules of Civil Procedure, as amended by A.M. No. 19-10-20-SC, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. [Sec. 27]

Striking out of an answer

General Rule: An objection to questions propounded in the course of oral examination must be interposed as soon as the ground(s) become evident. Failure to interpose a timely objection may be taken as a waiver of the right to object and the answer will be admitted.

Exceptions: A motion to strike out the answer, testimony or narration is available as a remedy where:

• Where a witness answers a question before the adverse party had the opportunity to voice fully its objection to the same
• Where a question is not objectionable, but the answer is not responsive
• Where a witness testifies without a question being posed
• Where witness testifies beyond limits set by the court
• Where the witness does a narration instead of answering the question (Rule 132, Sec. 39)

An Answer, Testimony or Narration May be Stricken Off the Record:

• On motion of party - 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 the answer, testimony or narration to be stricken off the record. (Rule 132, Sec. 39)
• On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (Rule 132, Sec. 39)