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RULE 132 PRESENTATION OF EVIDENCE EXAMINATION OF WITNESSES

RULE 132 PRESENTATION OF EVIDENCE EXAMINATION OF WITNESSES. Section 1. Examination to be Done in Open Court. Rules:.

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RULE 132 PRESENTATION OF EVIDENCE EXAMINATION OF WITNESSES

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  1. RULE 132PRESENTATION OF EVIDENCE EXAMINATION OF WITNESSES

  2. Section 1. Examination to be Done in Open Court Rules: • Effect of Failure to Take Oath or Affirmation: It is generally held that where a witness testifies without having sworn, the judgment will be set aside if the error is not discovered until after judgment . (Herrera). • However, the right to have a witness sworn may be waived if the other party fails to object to the taking of the testimony of a witness without the administration of an oath • Under Section 1, Rule 71, the refusal to be sworn or to answer as a witness constitutes direct contempt of court.. • Questions propounded to a witness must: a. BE relevant; b. NOT be indefinite or uncertain; c. NOT be argumentative; d. NOT call for conclusion of law; e. NOT call for opinion or hearsay evidence; f. NOT call for illegal answer; • HOW ORAL EVIDENCE GIVEN: The usual way of presenting oral testimony is to call the witness to the stand and ask him questions. The testimony of witnesses is elicited by interrogation or the propounding of questions. • Purpose: to enable the court to judge the credibility of the witness by: • the witness’ way of testifying, • their intelligence’ and • their appearance g. NOT call for self-incriminating testimony; h. NOT be leading; i. NOT be misleading; j. NOT tend to degrade reputation of witness; k. NOT be repetitious; l. NOT call for a narration.

  3. Section 3. Rights and Obligations of a witness CLASSIFICATION OF IMMUNITYSTATUTES: • Use immunity- only prohibits the use of witness’ compelled testimony and its fruit in any manner in connection with the criminal prosecution of the witness. It does not render a witness immune from prosecution despite invocation of right against selfincrimination. • Transactional immunity- grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. • For purposes of evidence, right against selfincrimination refers only to testimonial compulsion. • Right against self-incrimination is grated only to individuals, hence, a corporation CANNOT invoke tjhat privilege as the question testimony can come only from a corporate officer or employee who has a personality distinct from that of a corporation.

  4. Section 3. Rights and Obligations of a witness 1. THE BILL OF RIGHTS OF A WITNESS: • To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; • Not to be detained longer than the interests of justice require; • Not to be examined except only as to matters pertinent to the issue; • Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; • Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. Rules: • Note: A witness may be required to testify even if his answer may be the basis of a civil liability. • The exception under letter d. refers to IMMUNITY STATUTES wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony, e.g., under Section 8, R.A. 1379, the law providing for the forfeiture of unlawfully required property; and under P.D. 749, in prosecutions for bribery and graft.

  5. WITNESS PROTECTION, SECURITY, AND BENEFIT ACT (RA 6981) • State Witness- person who has participated in the commission of a crime and desires to be a witness for the state shall be admitted into the program whenever the following circumstances are present: • the offense in which his testimony will be used is a grave felony as defined under RPC or its equivalent under special laws; • absolute necessity for his testimony; • there is no direct evidence available for the prosecution of the offense committed; Sec. 10. State witness. Definition: • Before any person is admitted into the program he hall execute a sworn statement describing in detail the manner and his participation therein. (Sec. 11) • If his application is denied, said sworn statement and other testimony given in support of said application shall NOT be admissible in evidence. • Admission into the program shall entitle such state witness to immunity from criminal prosecution for the offenses in which his testimony will be given and used. (Sec. 12) • Failure without just cause when lawfully obliged to do so, shall be prosecuted for contempt if he testifies falsely or evasively, he shall be removed and shall be subject to contempt or criminal prosecution. (Sec. 13) • his testimony can be substantially corroborated on its material points; • he does not appear to be the most guilty; and • he has not at any time been convicted of any crime involving moral turpitude.

  6. Section 4. Order in the examination of an individual witness. 1. direct examination; 2. cross-examination; 3. redirect examination; 4. re-cross examination. Order: Rules: • Limitations on Direct Examination • Questions calling for conclusions or opinions, except when opinion testimony is permissible. • Repetitive questions. • Compound questions or those which embraces more than one inquiry to be answered. • Erroneous assumption that a material fact in issue has been proved or that the witness has given certain testimony. • DIRECT EXAMINATION – the examination-in-chief of a witness. GENERAL RULE: Testimony in narrative form is NOT allowed. Exceptions: Witness is her own counsel. (Thresher vs. Bank, 68 Conn. 201, 36 Atl. 38) When allowed by the trial court.(People vs. Davis, 6 Cal. App. 229, 91 Pac. 810)

  7. Section 4. Order in the examination of an individual witness. Rules: CROSS-EXAMINATION – an examination to rebut matters stated in the direct examination and any inference or deductions which may be drawn therefrom. PURPOSES: to discredit the witness; to discredit the testimony of the witness; to clarify certain matters; to elicit admissions from a witness. Scope or Limits of Cross- Examination: 1) English Rule — a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination. American Rule — restricts crossexamination to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness. Note: Both rules are followed in the Philippines.

  8. DOCTRINE OF INCOMPLETE TETIMONY- GENERAL RULE: When cross-examination cannot bedone or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent should be stricken out of the record. Section 4. Order in the examination of an individual witness. Rules: • A party who voluntarily offers the testimony of a witness in the case is bound by the testimony of said witness, EXCEPT: • adverse party; • hostile witness; • unwilling witness; • witness required by law to be presented. • HOSTILE WITNESS- may be considered as such only if so declared by the court upon adequate showing of: • his adverse interest; • unjustified reluctance; or hi having misled the party into calling him to the witness stand. EXCEPTION: Where 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.

  9. REDIRECT EXAMINATION – a reexamination of the witness by the party calling him after he has been cross-examined to explain or supplement his answers given during cross-examination. • Questions on matters not dealt with during the cross-examination may be allowed by the court in its discretion. Section 4. Order in the examination of an individual witness. Rules: • RE-CROSS-EXAMINATION – an examination by the adverse party of a witness after re-direct examination. • The adverse party may re-crossexamine the witness on matters stated in his re-direct examination and also on such other matters in the discretion of the court. • Purpose: To complete the answer of a witness or of adding a new matter which has been omitted, or of correcting a possible misinterpretation of testimony. (People vs. de Guzman, GRN 117217, Dec. 2, 1996)

  10. GENERAL RULE: A witness cannot be recalled after the examination by both parties has been concluded. • Exception: When allowed by the court in the interest of justice. Section 9. RECALLING WITNESS Rules: • LEADING QUESTION – one which suggests to the witness the answer which the examining party desires. General Rule: Leading question is not allowed. • MISLEADING QUESTION – one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. General Rule: A misleading question is not allowed. Exceptions: • On cross-examination; • On preliminary matters; Exceptions: • when waived; • asking hypothetical questions to an expert witness. • 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 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. • Of an unwilling or hostile witness; or

  11. PROCEDURE FOR IMPEACHING WITNESS BY EVIDENCE OF PRIOR INCONSISTENT STATEMENTS (LAYING THE PREDICATE) • The statement must be related to him with the circumstances of the times and places and persons present; • If the statement be in writing they must be shown to the witness before any question is put to him concerning them; and Section 9. RECALLING WITNESS Rules: • EXAMINATION OF WITNESSES UNDER THE RULES ON ELECTRONIC EVIDENCE • Method of Proof: Affidavit Evidence: All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. • Cross-Examination of Deponent: The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined. • Electronic Testimony: After summarily hearing the parties pursuant above, the court may authorize the presentation of testimonial evidence by electronic means. • he must be asked whether he made such statements, and if so, allowed to EXPLAIN them

  12. IMPEACHMENT OF WITNESSES: To “impeach” a witness means to discredit the witness’ testimony. Impeaching a witness is a fundamental right on cross-examination. Section 9. RECALLING WITNESS Rules: • Unwilling or Hostile Witness – one declared by the court as such upon adequate showing: • of his adverse interest; • unjustified reluctance to testify; or • his having misled the party into calling him to the witness stand. a. Methods of Impeaching a Witness By the Adverse Party By contradictory evidence By general reputation for truth, honesty or integrity is bad By previous inconsistent statements • By a Party to His Own Witness: • General Rule: A party cannot impeach the credibility of his own witness. • Exception: When the witness he produced or called is an adverse witness, or one declared by the court as unwilling or a hostile witness. • Note: However, a witness cannot be impeached by evidence of particular wrongful acts unless there is a showing of previous conviction by final judgment. Existence of pending information may not be shown to impeach him. (People vs. Nanas, GRN 137299, Aug. 21, 2001) • Other Modes of Impeachment: • By involving him during cross-examination • By sowing the impossibility or improbability of his testimony • Exception to the Exception: The adverse witness, or unwilling or hostile witness cannot be impeached by evidence of his bad character. • By proving action or conduct of the witness inconsistent with his testimony, e.g., failure to make an outcry in rape • By showing bias, interest or hostile feeling against the adverse party

  13. Section 9. RECALLING WITNESS Rules: • IMPEACHING A WITNESS BY EVIDENCE OF PRIOR INCONSISTENT STATEMENTS: • Laying Down the Predicate – a process of cross-examining a witness upon the point of prior contradictory statements. • Nature of the Rule “Falsus in Uno, Falsusin Omnibus” • Under the maxim falsus in uno, falsusin omnibus, there is a presumption that a witness who has willfully given false testimony in one detail has also testified falsely in other respects and may be considered unworthy of belief as to the rest of his testimony. • However the rule does not really lay down a categorical test of credibility. (People vs. Letigo, GRN 112968, Feb. 13, 1997). It is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, particularly were the false portions could be innocent mistakes. Inconsistencies and contradictions on minor details do not impair the credibility of witnesses as they are but natural. (People vs. Pacapac, GRN 90623, Sept. 7, 1995) • A witness may be impeached by evidence that he has made at different time statements inconsistent with his present testimony. • Unless a ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness.

  14. Section 9. RECALLING WITNESS Rules: • IDENTIFICATION TESTIMONY: a. Components of Identification Testimony: • Witnessing a crime, whether as a victim or bystander, involves perception of an event actually occurring; • The witness must memorize details of the event; and • The witness must be able to recall and communicate accurately. • Totality of Circumstances Test – a test to resolve the admissibility and reliability of out-of-court identification of suspects considering the following factors: • The witness’ opportunity to view the criminal at the time of the crime; • The witness’ degree of attention at that time; • The accuracy of any prior description given by the witness; • Out-of-Court Identification of Suspects: • Show-ups, where the suspect alone is brought face to face with the witness for identification. • Mug Shots, where photographs are shown to the witness to identify the suspect. • Line-ups, where a witness identifies the suspect from a group of persons lined-up for the purpose of identification. • Danger of unreliability in eyewitness testimony arises at each of these three stages, for whenever people attempt to acquire, retain and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. (People vs. Teehankee, Jr., GRN 111206-08, Oct. 6, 1995) • The level of certainty demonstrated by the witness at the identification • The length of time between the crime and the identification; and • The suggestiveness of the identification procedure.

  15. Section 9. RECALLING WITNESS Rules: • AUTHENTICATION the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it to be; that which is necessary to establish the genuineness of a document. • AUTHENTICATION AND PROOF OF DOCUMENTS: • Classification of Documents a. Public Documents • The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; • Documents acknowledged before a notary public except last wills and testaments; and • WHEN WITNESS MAY REFER TO MEMORANDUM: This rule permits a witness to refresh his memory respecting a fact by anything written or recorded by himself or under his direction. This provision applies only when it is shown beforehand that there is need to refresh the memory of the witness. Requisites: • The entries were written or recorded by the witness himself; • All other writings are private. • Note: In criminal law, documents are classified into public, official, commercial and private documents. But when these types of documents are offered in evidence, they fall into either public or private documents. • He made such entries at the time the events occurred, or immediately thereafter, or at any other time when the facts were still fresh in his memory; and The writer must assure the court that when the entries were made, those entries reflected the truth. • Public records, kept in the Philippines, of private documents required by law to be entered therein. • A document electronically notarized in accordance with the rules promulgated by the Supreme Court. (Rules on Electronic Evidence, A.M. No. 01-7-01-SC)

  16. Section 9. RECALLING WITNESS Rules: • PROOF OF AUTHENTICITY a. PRIVATE DOCUMENT • The due execution and authenticity must be proved by: • By anyone who saw the document executed or written; or • By evidence of the genuineness of the signature or handwriting of the maker. • HANDWRITING: • The genuineness of handwriting may be proved: • By any witness who believes it to be the handwriting of such person because: • he has seen the person write; or • he has seen writing purporting to be his upon which the witness has acted or been charged. • Private Documents that Need not be Authenticated to be Admissible a) Ancient Document; Requisites: • It is more than thirty (30) years old at the time it is introduced in evidence; • 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. • Handwriting experts are not mandatory. • Any other private document need only be identified as that which it s claimed to be. • The genuineness and due execution of the document are deemed admitted when NOT denied under oath by the party against whom it was pleaded. It is not even necessary to formally offer it in evidence. • Actionable Document; An actionable document must be pleaded: • By reciting the substance of the document in the pleading and attaching to the pleading a copy of that document; or • Without attaching the document to the pleading, by reciting into the pleading the entire text of the document. • It does not bear any sign of alteration or circumstances of suspicion. • It is produced from a custody where it ought to be had it been genuine; and

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