TRIAL PROPER

ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS

 DIRECT EXAMINATION:
o the examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue.
o Purpose: to elicit facts about the client’s cause of action or
defense.
o Form of questioning: limited to questions calling for specific
responses by witnesses. Testimony in narrative form is not
permitted because it is difficult to determine whether specific
portions of the testimony might be objectionable before uttered,
The remedy here will be a motion to strike.
o Exceptions:
1. Witness is his own counsel
2. When allowed by the court

 CROSS- EXAMINATION:
o the most reliable and effective way known of testing the
credibility and accuracy of testimony
o Purpose:
 To bring out facts favorable to counsel’s client not
established by the direct testimony and
 To enable counsel to impeach or to impair the
credibility of the witness
 To discredit the witness
 To discredit the testimony of the witness
 To clarify certain matters
 To elicit admissions from a witness.
o Doctrine of incomplete testimony: when cross-examination
cannot be done or completed due to causes attributable to the
party who offered the witness, the incomplete testimony is
rendered incompetent and should be stricken from the record.
1. Except where the prosecution witness was
extensively cross-examined on the material points
and thereafter failed to appear and cannot be
produced despite a warrant for his arrest. (People
vs. Gorospe, G.R. No. L-51513, May 15, 1984)
o When to strike out for lack or cross-examination:
 It depends who is at fault:
1. If it is the party presenting the witness who is at fault,
then the direct testimony can be expunged.
2. If the inability to cross-examine was attributable to
the adverse party (cross-examiner), then there can be
no forfeiture of the direct testimony.
 o Effect of Death or Absence of a witness:
 if a witness dies before his cross-examination, his testimony
on the direct may be stricken out only with respect to the
testimony not covered by the cross-examination. The
absence of the witness is not enough to warrant striking out
his testimony for failure to appear for further cross-
examination where he has already been sufficiently cross
examined, and the matter on which cross-examination is
sought is not in controversy. (People vs. Monje y Rosario,
G. R. No. 146689, September 27, 2002)
 Testimony of witness who died before he could be cross-
examined must be expunged if there is no showing of delay
by party waiting to cross. (Sps. Dela Cruz vs. Papa, G.R.
No. 185899, December 8, 2010)
o Cross-examination as to Bias and Prejudice:
 Questions impeaching the impartiality of witnesses,
while not directly relevant to the issue on trial, are
relevant in the sense that the persuasive quality of the
proof is affected by the discrediting testimony. It may
thus be shown that the witness is hostile, and the latter
can be questioned as to motives, bias, interest, conduct,
state of feelings, relations to the parties, and the like.

 RE-DIRECT EXAMINATION
o The witness may be allowed to reaffirm or explain his
statements, their meaning or import and to minimize or destroy
discrediting tendencies.
o Scope:
 It is a matter of right, but the time at which it may be had
is discretionary on the court.
 If in the exercise of discretion, the court admits matters
not dealt with during the cross-examination or if
explanation of the answers given is necessary, the court
may permit a re-cross examination
o Purpose:
 To prevent injustice to the witness and the part who has
called him by affording an opportunity to the witness to
explain or amplify the testimony which he has given on
cross-examination
 To explain any apparent contradiction or inconsistency
in his statements, an opportunity which is not ordinarily
afforded him during his cross-examination.
 To rehabilitate a witness whose credibility has been
damages

 RE-CROSS EXAMINATION
o Scope:
  It is NOT a matter of right on re-cross examination for
counsel to touch on matters not brought on the re-direct
examination of the witness.
 Is limited to new matters brought out on the re-direct
examination of the witness and also on such other matters
as may be allowed by the court in its discretion.

o Purpose:
 To overcome the other party’s attempt to rehabilitate a
witness
 To rebut damaging evidence brought out on cross-
examination or during redirect examination

WHAT TO EXPECT DURING CROSS-EXAMINATION?

 Cross examination in a criminal matter is when the defendant or their lawyer

challenges and attempts to undermine the prosecution case by exposing
weaknesses in the evidence of prosecution witnesses. The prosecution may
also challenge any oral evidence called by the defense by cross-examining
defense witness. Cross-examination of each witness occurs after the witness
has completed their examination-in-chief (What Happens During Cross
Examination? Dahlstrom Fernanda; @ gotocourt.com.au).

 When a lawyer who called the witness has finished his direct examination,
the opposing lawyer will have the chance to cross examine the witness.
Lawyers use cross examination to question the accuracy of the witness’s
memory, explore the witness’s biases, and challenge the witness’s ability to
identify certain facts that they testified to. A common way to challenge a
witness’s credibility is to ask the witness if they have been convicted of a
felony or crime (What to Expect on Cross Examination;
justcriminallaw.com; 26th Oct 2020).

 After the direct examination, the immediate task of the cross-examiner is to

determine whether the story put forward by a witness should be questioned
and assailed or allowed to remain in the record unchallenged in whole or in
part. The test is: if the testimony of a witness is damaging and there is a
good chance of casting doubt or contradicting it with strong evidence then
cross examination is called for. On the other hand, if the direct testimony is
harmless, not convincing at all to make an impression, or touches on
insignificant matters not in issue, or tends to favor the case of the cross
examiner then cross examination may be dispensed with or limited. In these
instances, cross examination could be purposeless and might be even
harmful (The Art and Technique of Cross Examination P.8; Justice
Ricardo L. Pronove, Jr.).

LAW ENFORCEMENT PARTICIPATION IN PROSECUTIONS

EVIDENCE
  Law enforcement officers partakes the investigation of crimes which may
take the form of surveillance and observation of suspects, other persons and
premises; interviewing persons with knowledge of facts directly or indirectly
connected with the offense; taking photographs (surreptitiously or
otherwise); arranging for entrapment; searching premises and persons
subject to constitutional and statutory safeguards; and examining public and
other available records pertaining to the persons involved and getting copies
of pertinent entries.

 The law enforcers, in other words, collect evidence for use in the
prosecution of the suspects in court. This may consist of the testimony of
witnesses, including invited suspects, which are invariably taken down in
question-and-answer form; writings and objects, e.g., gun, knife, other
weapons used in the commission of the crime, clothing of the victim, etc
(The Role and Function of the Prosecution in the Philippine Criminal
Justice System by Menrado Valle-Corpuz)

 They evaluate each information gathered during the intelligence operations

which has evidentiary value in the investigation of high profile crimes. The
evidence shall be further processed to match the forensic results and to make
them admissible in the court of law purposely to prove the elements of a
crime.

 Members of the lawenforcement must strictly observe the chain of custody

of evidence and the procedure in the collection, handling and preservation of
evidence.

 Information disclosed by key persons and witnesses must be treated with

priority for the conduct of follow up investigation either at the place of the
incident or the place mentioned by the information.

 Analysis of consolidated testimonial and documentary evidence, reports, and

records must be undertaken to determine whether or not the elements of the
crime violated are satisfied purposely for the filing of an airtight criminal
case.

 Each pieces of evidence gathered and testimonies obtained from parties and
witnesses must be organized in such a way so as not to unduly burden the
investigating prosecutor in the finding of probable cause.

SKILLS IN PRESENTING A COHERENT TESTIMONY OF LAW

ENFORCEMENT

 Since majority of police investigations rely more on the testimony of the

witnesses, the PNP should endeavor to avoid causing witnesses any
inconvenience during the investigation of criminal cases. In addition, the
PNP should accord protection to the witnesses considering the possible
 threats it may pose on their lives for cooperating in the investigation of a
case.

 Law enforcement investigators should exert more effort and utmost

diligence in reaching out to the complaints and their witnesses at the latters
convenient time, date and place. In cases where no more
information/evidence can be gathered from a witness despite all efforts, the
investigator must sign a notarized sworn statement/affidavit attesting that the
witness has no more information or is not willing to divulge more
information, as the case may be, for documentation purposes.

 Law enforcers and the apprehending team should adequately keep a clear
record of the facts of each case in preparation for the filing of cases.

 As much as law enforcers take good note of the facts of each cases handled,
affidavits submitted by parties should be throughly studied if not memorize.

HOW TO PREPARE FOR TRIAL

Preliminaries

 The counsel should go to court properly attired.

 Counsel should be in the court room at least fifteen minutes before the trial
is set to start.

 Counsel should find time going over with his paperworks before each
scheduled hearings.

Collection of Documents and Exhibits

 Well before trial, counsel should keep a list of all documents necessary for
the presentation of his case, from affidavits down to the pieces of evidence
submitted by the party.

Analyzation of the Case

 Cousel must prepare an outline of the pieces of evidence gathered relative to

the sequence of court trial presentation.

 Counsel should prepare his cross-examination outline—to be use for the

other side’s witnesses. Also, counsel must take down notes on facts of each
case to be used to challenge the veracity of each parties testimonies.

 During the trial, counsel may endeavor to write down any helpful evidence
that the witness may admit.
  Counsel should prepare an outline of his Submissions (final arguments)
which must be logical and sufficiently describes the evidence that supports
each point.

COLLABORATION OF PROSECUTOR AND LAW ENFORCEMENT

 Law enforcement are empowered to conduct investigations necessary for the

succesful prosecution of criminals. Prosecutors on the other hand checks the
investigation conducted by law enforcers whether it adhered to standard
meausres of due process.

 If a prosecutor does not have the cooperation of law enforcers, he or she will
encounter problems in investigating and in presenting evidence in court.
Law enforcers thus depend on prosecutors almost as much as prosecutors
depend on them.

 Law enforcers depend on prosecutors to advise them about legal issues in

criminal cases and to train police officers in securing warrants, making legal
arrests, and interrogating suspects. (Important Relationships for
Prosecutors by Cliffnotes).

 In Philippine setting, the same predicament likewise confronts prosecutors

and law enforcement officers. Unlike other western countries with much
develop system of prosecution of suspects, prosecutors and law enforcement
authorities in the country have a more relaxed and laid-back approach
starting from investigation of crimes and the submission of the case to the
prosecutor. In a way, symbiosis between law enforcement authorites and
prosecutors does not really exist as each parties worked only based on their
given duty and functions. Thus in so far as to the apprehension of criminals,
police authoritie gathers only the evidence and affidavits and leaves the
whole case to the prosecutors.

 In some cases, as if assuming the role of a detective in a given case,

prosecutors are sometimes left on a guesing game as the evidence and the
necessary affidavits submitted by the police are all incomplete and
oftentimes irrelevant.

COLLABORATION OF PROSECUTOR AND LAW ENFORCEMENT

 Testimony of Arresting Officer and Investigation of Case
 Evidence in the Custody of Law Enforcement
 Additional Witnesses secured by the Law Enforcement

AUTHENTICATION OF EVIDENCE

 PROOF OF PRIVATE DOCUMENT

 Before any private document offered as authentic is received in evidence, its
execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or hand writing of the
maker (Sec. 20, Rule 132, Revised Rules on Evidence).

 PROOF OF THE GENUINENESS OF A HANDWRITING

The handwriting of a person may be proved by any witness, who believes it

to be the handwriting of such person because he has seen the person write, or
has seen writing purporting to be his own upon which the witness has acted
or been charged, and has thus acquired knowledge of the handwriting of
such person. Evidence respecting the handwriting may also be given by a
comparison made by the witness or the court, with writings admitted or
treated as genuine by the party against whom the evidence is offered, or
proved to be genuine to the satisfaction of the judge (Sec. 22, Rule 132,
Revised Rules on Evidence).

 PROOF OF OFFICIAL RECORD

The record of public documents when admissible for any purpose, may be
evidenced by an official publication thereof or copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer
has the custody. If the office in which the record is kept is in a foreign
country, 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 (Sec. 24, Rule 132, Revised Rules on Evidence).

 PROOF OF PRIVATE ELECTRONIC EVIDENCE

Before any private electronic document offered as authentic is received in

evidence, its authenticity must be proved by any of the following means:

(a) By evidence that it had been digitally signed by the person purported to
have signed the same;
(b) By evidence that other appropriate security procedures or devices as may
be authorized by the Supreme Court or by law for authentication of
electronic documents were applied to the document; or
(c) By other evidence showing its integrity and reliability to the satisfaction
of the judge (Sec. 2, Rule 5, A.M. No. 01-7-01-SC).

 PROOF OF ELECTRONIC SIGNATURES

 An electronic signature may be authenticated in any of the following
manner:

(a) By evidence that a method or process was utilized to establishe a digital

signature and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the
genuineness of the electronic signature (Sec. 2, Rule 6, A.M. No. 01-7-
01-SC)

RULES ON ELECTRONIC EVIDENCE [ A.M. NO. 01 - 7 - 01 - SC ]

 APPLICABILITY

These Rules shall apply to all civil actions and proceedings, as well as quasi-
judicial and administrative cases. [REE, Rule 1, Sec. 2]

 APPLICATION IN CRIMINAL ACTIONS

While the case of Ang v. CA (G.R. No. 182835 April 20, 2010) held that the
Rules on Electronic Evidence applies only to civil actions, quasi-judicial
proceedings and administrative proceeding, not to criminal action, People
vs. Enojas [G.R. No. 204894, March 10, 2014], the SC upheld the RTC’s
admission of text messages as evidence in a murder case as conforming with
the Court’s earlier Resolution [A.M. NO. 01-7-01] applying the Rules on
Electronic Evidence to criminal actions.

 FACTORS IN ASSESSING EVIDENTIARY WEIGHT OF

ELECTRONIC EVIDENCE [RULE 7, SEC. 1]

In assessing the evidentiary weight of an electronic document, the following

factors may be considered:

(1) The reliability of the manner or method in which it was generated, stored
or communicated, including but not limited to:

(a) input and output procedures,

b) controls, tests and checks for accuracy and reliability of the electronic
data message or document,
(c) in the light of all the circumstances as well as any relevant agreement;

2) The reliability of the manner in which its originator was identified;

(3) The integrity of the information and communication system in which it is

recorded or stored, including but not limited to the hardware and computer
programs or software used as well as programming errors;
(a) Whether the information and communication system or other similar device
was operated in a manner that did not affect the integrity of the electronic
document, and there are no other reasonable grounds to doubt the integrity of the
information and communication system;

(b) Whether the electronic document was recorded or stored by a party to the
proceedings with interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored in the usual and
ordinary course of business by a person who is not a party to the proceedings and
who did not act under the control of the party using it [Rule 7, Sec. 2]

(4) The familiarity of the witness or the person who made the entry with the
communication and information system;

(5) The nature and quality of the information which went into the communication
and information system upon which the electronic data message or electronic
document was based; or

(6) Other factors which the court may consider as affecting the accuracy or
integrity of the electronic document or electronic data message.

Text messages have been classified as “ephemeral electronic

communication” under Section 1(k), Rule 2 of the Rules on Electronic
Evidence, and “shall be proven by the testimony of a person who was a party
to the same or has personal knowledge thereof.” [Vidallon-Magtolis v. Salud
(A.M. No. CA-0520-P September 9, 2005)]

 METHOD OF PROOF

(1) Affidavit of Evidence [Rule 9, sec. 1]

(a) Must state facts (i) of direct personal knowledge, or (ii) based on authentic
records (b) Must affirmatively show the competence of the affiant to testify on
the matters contained in the affidavit

(2) Cross-Examination of Deponent [Rule 9, sec. 2]

(a) Affiant shall affirm the contents of the affidavit in open court. (b) Affiant
may be cross-examined as a matter of right by the adverse party.

 ELECTRONIC DOCUMENTS AND THE BEST EVIDENCE RULE

The following are originals/equivalent of originals (Rule 4, Secs. 1and 2)

(1) A printout or output readable by sight or other means, shown to reflect data
accurately
(2) Copies executed at or about the same time with identical contents

(3) Counterpart produced by the same impression as the original

(4) Copies or duplicates produced from the same matrix, or by mechanical or

electronic re-recording, or by chemical reproduction, or by other equivalent
techniques which reproduces the original

 ELECTRONIC DOCUMENTS AND THE HEARSAY RULE

 BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

What Constitute Business Records: Records of any business, institution,

association, profession, occupation, and calling of every kind, whether or not
conducted for profit, or for legitimate purposes [Rule 2, sec. 1b]

 REQUISITES TO AN EXCEPTION TO THE RULE ON HEARSAY

EVIDENCE

A memorandum, report, record, or data compilation of acts, events,

conditions, opinions or diagnosis:

1) Made by electronic, optical or other similar means

2) Made at or near the time of or from transmission or supply of information
3) Made by a person with knowledge thereof
(4) Kept in the regular course or conduct of a business activity,
(5) Such was the regular practice to make the memorandum, report, record,
or data compilation by electronic, optical or similar means
(6) Abovementioned facts shown by the testimony of the custodian or other
qualified witnesses [Rule 8, Sec. 1]

 THE PRESUMPTION PROVIDED ABOVE MAY BE OVERCOME

BY EVIDENCE OF—

(1) Untrustworthiness of the source of information

2) Untrustworthiness of the method of the preparation, transmission or storage
thereof
(3) Untrustworthiness of the circumstances of the preparation, transmission or
storage thereof [Rule 8, Sec. 2]

 AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE

Audio, video and similar evidence, to be admissible shall be— (1) shown,
presented or displayed to the court and (2) identified, explained or
authenticated by the person who made the recording or by some other person
competent to testify on the accuracy thereof [Rule 11, Sec.1]
 Ephemeral electronic communications shall be proven by the testimony of a
person who was a party to the same or has personal knowledge thereof. In
the absence or unavailability of such witnesses, other competent evidence
may be admitted. [Rule 11, Sec. 2] 

If ephemeral electronic communication and recording of telephone

conversation under Rule 11, Sec 2 of the REE are recorded or embodied in
an electronic document, then the provisions of Rule 5 (“Authentication of
Electronic Documents”) shall apply.

LAWS AND JURISPRUDENCE

 The Best Evidence Rule states that when the subject of inquiry is the
contents of a document, the best evidence is the original document itself and
no other evidence (such as a reproduction, photocopy or oral evidence) is
admissible as a general rule. The original is preferred because it reduces the
chance of undetected tampering with the document. In the instant case, there
is no room for the application of the Best Evidence Rule because there is no
dispute regarding the contents of the documents.

 The real issue is whether the admitted contents of these documents

adequately and correctly express the true intention of the parties. As to the
Deed of Sale, petitioners (and RBBI) maintain that while it refers to the TCT
No. T-62096, the parties actually intended the sale of Lantap property
(covered by TNC No. T-62836) (Marquez v. Espejo, G.R. No. 168387,
August 25, 2010).

 No precise minimum age can be fixed at which children shall be excluded

from testifying. The intelligence, not the age, of a young child is the test of
the competency as a witness. It is settled that a child, regardless of age, can
be a competent witness if he can perceive and, in perceiving, can make
known his perception to others and that he is capable of relating truthfully
the facts for which he is examined (People v. Pruna, supra).

 It is generally held that sound recording is not inadmissible because of its

form where a proper foundation has been laid to guarantee the genuineness
of the recording. In our jurisdiction, it is a rudimentary rule of evidence that
before a tape recording is admissible in evidence and given probative value,
the following requisites must first be established, to wit: (1) a showing that
the recording device was capable of taking testimony; (2) a showing that the
operator of the device was competent; (3) establishment of the authenticity
and correctness of the recording; (4) a showing that changes, additions, or
deletions have not been made; (5) a showing of the manner of the
preservation of the recording; (6) identification of the speakers; and (7) a
showing that the testimony elicited was voluntarily made without any kind
of inducement (Torralba v. People, G.R. No. 153699, August 22, 2005).
 Testimony is hearsay if its probative value is not based on the personal
knowledge of the witness but on that of some other person who is not on the
witness stand. However, in failing to object to the testimony on the ground
that it was hearsay, the evidence offered may be admitted (Bayani v. People,
G.R. No. 155619, August 14, 2007).

 Only an accused in a criminal case can refuse to take the witness stand. The
right to refused to take the stand does not generally apply to parties in
administrative cases or proceedings. The parties thereto can only refuse to
answer if incriminating questions are propounded. This Court applied the
exception – a party who is not an accused in a criminal case is allowed not to
take the witness stand – in administrative cases/proceedings that partook of
the nature of a criminal proceeding or analogous to a criminal proceeding. It
is likewise the opinion of the Court that said exception applies to parties in
civil actions which are criminal in nature. As long as the suit is criminal in
nature, the party thereto can altogether decline to take the witness stand. It is
not the character of the suit involved but the nature of the proceedings that
control (Rosete v. Lim, G.R. No. 136051, June 8, 2006).

 As a general rule, Courts cannot consider evidence which has not been
formally offered because parties are required to inform the courts of the
purpose of introducing their respective exhibits to assist the latter in ruling
on their admissibility in case an objection thereto is made. Without a formal
offer of evidence, courts are constrained to take no notice of the evidence
even if it has been marked and identified. This rule, however, admits of 2
exceptions, provided that (1) the evidence has been identified by testimony
duly recorded; and (2) that it has been incorporated in the records of the case
(Star Two [SPV-AMC], Inc. v. Ko, G.R. No. 185454, March 23, 2011).

 The duty to ascertain the competence and credibility of a witness rests

primarily with the trial court, because it has the unique position of observing
the witness’s deportment on the stand while testifying. Absent any
compelling reason to justify the reversal of the evaluations and conclusions
of the trial court, the reviewing court is generally bound by the former’s
findings (People v. Abulon, G.R. No. 174473, August 17, 2007).

 DNA print or identification technology is now recognized as a uniquely

effective means to link a suspect to a crime, or to absolve one erroneously
accused, where biological evidence is available. For purposes of criminal
investigation, DNA identification is a fertile source of both inculpatory and
exculpatory evidence. It can aid immensely in determining a more accurate
account of the crime committed, efficiently facilitating the conviction of the
 guilty, securing the acquittal of the innocent, and ensuring the proper
administration of justice in every case. (People v. Umanito, G.R. No.
172607, October 26, 2007).

 In a virtual or paperless environment, technically, there is no original copy

to speak of, as all direct printouts of the virtual reality are the same, in all
respects, and are considered as originals; Ineluctably, the law’s definition of
“electronic data message,” which, as aforesaid, is interchangeable with
“electronic document,” could not have included facsimile transmissions,
which have an original paper-based copy as sent and a paper-based facsimile
copy as received (MCC Industrial Sales Corp. v. Ssangyong Corp., G.R.
No. 170633, October 17, 2007)

 Documentary evidence will generally prevail over testimonial evidence.

As the Court of Appeals noted, the return card submitted by respondent
proves that the demand letter was received by petitioner. This Court is
inclined to give more evidentiary weight to documentary evidence as
opposed to a testimony which can be easily fabricated. In any case, the
question of whether the letter was received is a factual matter better left to
the lower courts. Since the factual findings of appellate courts are conclusive
and binding upon this Court when supported by substantial evidence, this
Court sees no reason to disturb the findings of the Court of Appeals.
(Gotesco Properties, Inc. vs. Solidbank Corporation (now Metropolitan
Bank and Trust Company), 833 SCRA 104, G.R. No. 209452 July 26,
2017)