Kinds ob objections
For example, if the
Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is too far afield,
though, a relevance objection may be warranted. The line is hard to draw here. It boils down to a judgment
call on whether the question is likely to lead to admissible evidence.
Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example,
if your client is asked “What did Jane tell you?” the answer can lead to the discovery of admissible evidence.
If you are taking the deposition, you can determine based on the answer whether you should take Jane’s
deposition, and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a
witness to testify at trial. Remember, the reason you can’t ask someone else what Jane said at trial is that
you need to be able to cross examine Jane to determine her credibility. (There are, of course, exceptions
that I won’t discuss here.)
Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence. For
example, it is permissible to ask “If you had known X, how would you have behaved differently?” However,
be careful here, as this could be a proper objection depending on the question. Do not let your client
speculate and object if the question calls for speculation. You may want to let your client answer if she
knows how she would have behaved if she had known X.
Calls for an opinion. Foundation does not need to be established to determine whether the deponent is
qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that
opinion.Q: “Do you think that the brakes were in working order on the Toyota?”
A: “No.”
Q: “Why not?”
A: “When I drove it 2 weeks before the accident they were acting funny.”
The lawyer taking the deposition can obtain information that may not otherwise have been received in
written discovery and the answers can lead to discoverable evidence.
Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor
should the lawyer coach the deponent with objections. The lawyer cannot say that she does not understand
the question. It is up to the deponent to ask for clarification. “If you know” and “if you remember”are
coaching objections. However, you may ask, “Who is she?” when the deponent uses the word “she”
unclearly in a question. That is not speaking or coaching, because it does not suggest the answer. Objections
must be stated succinctly in a non-argumentative and non-suggestive manner.
Do not let yourself get bullied by an opposing counsel who is making improper objections. If several
improper objections are made, there are a few ways to respond. You can ask, for example, why the
objections are being made, as they are not required for the record. Be prepared for that to lead to an
argument.
If that discussion gets you nowhere, you may wish to tell the other lawyer that you will assume that there is
a standing relevancy (for example) objection to every question, so the objection no longer needs to be
made. If neither of those things works, just try to tune out the objections and proceed with the deposition.
Inform the deponent that unless her lawyer instructs her not to answer, that she should answer the
question. (There are rare instances in which a lawyer can properly instruct a deponent to refuse to answer.)
Proper deposition objections
Privilege. This is the big one. It must be made or it is waived. This covers anyprivilege, such as attorney-client
and physician-client. Object if your client is asked what he said to his lawyer. Of course, the deposing lawyer
can properly ask “When you spoke with your lawyer about this case, was anyone else in the room? Who?”
Based on the answer, the privilege may have been waived. Privilege is also the one case in which you should
instruct your client not to answer. If the opposing lawyer continues to attempt to invade the privilege, you
can threaten to terminate the deposition. If the privilege questions continue, terminate the deposition.
Form of the question. This objection is usually asserted to make a clear record. Form questions fall in several
categories. Some jurisdictions only require that the lawyer state a general “form” objection. Others require
that the type of form objection be stated as well. Form questions are waived if they are not made during the
deposition.
Compound. If the question is compound and the person answers yes, what portion of the question are they
agreeing with? For example, if your client is asked “When you turned left were you in the turn lane and was
your signal on and was the light green and how do you know”— object! Ask the lawyer to ask one question
at a time.
Confusing. I know I stated above that it is improper to ask for clarification, but it depends. If the question is
truly confusing, an objection may be proper.
Calls for speculation. A form objection should also be made to a question that calls for the witness to
speculate. Be careful, though. Don’t suggest an answer, which would not be proper.
Mischaracterizes earlier testimony. This is also to make sure there is a clear record.
deponent earlier stated he was not sure of his speed, and was then asked: “So you testified earlier that you
were speeding …” it is proper to object as mischaracterizing earlier testimony. The deponent said she did
not know how fast she was going; she did not admit she was speeding.
Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer
than he gave earlier in the deposition. If you don’t make the objection and your client does provide differing
information, your client loses credibility. And the testimony can be used for impeachment at trial. The
opposing lawyer may not realize that he asked the question earlier, and making the objection can throw him
off and make him doubt himself.
Calls for a legal conclusion. Deponents are there to testify about facts, not legal conclusions. If the deponent
is a lawyer, it may be a proper question, depending on the circumstances. Otherwise, it’s not.
Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, describe the
specific conduct that is objectionable for the record, and further state on the record that you will terminate
the deposition if the behavior continues. Make sure the record will be clear to an outsider (i.e. the judge)
that the witness was being harassed or bullied. As with privilege, if the lawyer does not stop the
harassment, terminate the deposition.
Ambiguous, confusing, misleading, vague, unintelligible: the question is not clear and precise enough for the
witness to properly answer.
Arguing the law: counsel is instructing the jury on the law.
Argumentative: the question makes an argument rather than asking a question.
Asked and Answered: when the same attorney continues to ask the same question and they have already
received an answer. Usually seen after direct, but not always.
Asks the jury to prejudge the evidence: the jury cannot promise to vote a certain way, even if certain facts
are proved.
Asking a question which is not related to an intelligent exercise of a peremptory challenge or challenge for
cause: if opposing counsel asks such a question during voir dire (i.e. the jury selection process.)
Assumes facts not in evidence: the question assumes something as true for which no evidence has been
shown.
Badgering: counsel is antagonizing the witness in order to provoke a response, either by asking questions
without giving the witness an opportunity to answer or by openly mocking the witness.
Best evidence rule: requires that the original source of evidence is required, if available; for example, rather
than asking a witness about the contents of a document, the actual document should be entered into
evidence. Full original document should be introduced into evidence instead of a copy, but judges often
allow copies if there is no dispute about authenticity. Some documents are exempt by hearsay rules of
evidence.[2]
Beyond the scope: A question asked during cross-examination has to be within the scope of direct, and so
on.
Calls for a conclusion: the question asks for an opinion rather than facts.
Calls for speculation: the question asks the witness to guess the answer rather than to rely on known facts.
Compound question: multiple questions asked together.
Hearsay: the witness does not know the answer personally but heard it from another. However, there are
several exceptions to the rule against hearsay in most legal systems.[2]
Incompetent: the witness is not qualified to answer the question.
Inflammatory: the question is intended to cause prejudice.
Leading question (Direct examination only): the question suggests the answer to the witness. Leading
questions are permitted if the attorney conducting the examination has received permission to treat the
witness as a hostile witness. Leading questions are also permitted on cross-examination, as witnesses called
by the opposing party are presumed hostile.
Narrative: the question asks the witness to relate a story rather than state specific facts. This objection is
not always proper even when a question invites a narrative response, as the circumstances of the case may
require or make preferable narrative testimony.
Privilege: the witness may be protected by law from answering the question.
Irrelevant or immaterial: the question is not about the issues in the trial.
Misstates evidence / misquotes witness / improper characterization of evidence: this objection is often
overruled, but can be used to signal a problem to witness, judge and jury.[3]
Counsel is testifying: this objection is sometimes used when counsel is "leading" or "argumentative" or
"assumes facts not in evidence".
A few of the foregoing objections may also apply to the witness's response, particularly hearsay, privilege,
and relevance.
Proper reasons for objecting to material evidence include:
Lack of foundation: the evidence lacks testimony as to its authenticity or source.
Fruit of the poisonous tree: the evidence was obtained illegally, or the investigative methods leading to its
discovery were illegal. Can be circumvented; see inevitable discovery
Incomplete: opposing party only introducing part of the writing (conversation/act/declaration), taken out of
context. Under the evidence rule providing for completeness, other party can move to introduce additional
parts.[4] If any documents presented for the review, the judge and other party entitled to a complete copy,
not a partial copy, of the document. When a witness is presented with a surprise document, he should be
able to take time to study it, before he can answer any questions.
Best evidence rule or hearsay evidence: requires that the original source of evidence is required, if available.
However, some documents are self-authenticating under Rule 902, such as (1) domestic public documents
under seal, (2) domestic public documents not under seal, but bearing a signature of a public officer, (3)
foreign public documents, (4) certified copies of public records, (5) official publications, (6) newspapers and
periodicals, (7) trade inscriptions and the like, (8) acknowledged documents (i.e. by a notary public), (9)
commercial paper and related documents, (10) presumptions under Acts of Congress, (11) certified
domestic records of regularly conducted activity, (12) certified foreign records of regularly conducted
activity.[2]
More prejudicial than probative: Under Federal Rule of Evidence 403, a judge has the discretion to exclude
evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury."
Proper reasons for objecting to a witness's answer include:
Narrative: the witness is relating a story in response to a question that does not call for one. Not all
witnesses' answers are susceptible to this objection, as questions can and often do call for a narrative
response, especially on direct examination.
Non-responsive: the witness's response constitutes an answer to a question other than the one that was
asked, or no answer at all
Nothing pending: the witness continues to speak on matters irrelevant to the question.
Example: “Did your mother call?” “Yeah. She called at 3:00." Opposing counsel can object to the latter part
of this statement, since it answers a question that was not asked. With some concern for annoying the
court, counsel will selectively use this to prevent a witness from getting into self-serving answers.
EXPERT WITNESS
7. Opinion Rule
Section 48.General rule. — The opinion of witness is not admissible, except as indicated in the following
sections. (42)
Section 49.Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he shown to posses, may be received in evidence. (43a)
Section 50.Opinion of ordinary witnesses. — 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 has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a
person. "Weight of expert testimony
The petitioner likewise claims that the CA violated Section 49, Rule 130 of the Revised Rules of Court when it
disregarded the testimony of defense witness Police Senior Inspector Danilo Cornelio who testified that the
petitioner’s car could not have bumped the victim because the latter’s body was not thrown in line with the
car, but on its side. The petitioner argues that P/Sr. Insp. Cornelio is highly qualified in the field of traffic
accident investigation, and as such, his statements are “backed-up by [the] principles of applied physics,
engineering, and mathematics.”[45]
The petitioner’s arguments fail to convince us.Section 49, Rule 130 of the Revised Rules of Court states that
the opinion of a witness on a matter requiring special knowledge, skill, experience or training, which he is
shown to possess, may be received in evidence. The use of the word “may” signifies that the use of opinion
of an expert witness is permissive and not mandatory on the part of the courts. Allowing the testimony does
not mean, too, that courts are bound by the testimony of the expert witness. The testimony of an expert
witness must be construed to have been presented not to sway the court in favor of any of the parties, but
to assist the court in the determination of the issue before it, and is for the court to adopt or not to adopt
depending on its appreciation of the attendant facts and the applicable law. It has been held of expert
testimonies:Although courts are not ordinarily bound by expert testimonies, they may place whatever
weight they may choose upon such testimonies inaccordance with the facts of the case. The relative weight
and sufficiency of expert testimony is peculiarly within the province of the trial court todecide, considering
the ability and character of the witness, his actions upon the witness stand, the weight and process of the
reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies,
the fact that he is a paid witness, the relative opportunities for study and observation of the matters about
which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the
expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and
circumstances in the case and when common knowledge utterly fails, the expert opinion may be given
controlling effect. The problem of the credibility of the expert witness and the evaluation of his testimony is
left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of
discretion.[46]We emphasize that P/Sr. Insp. Cornelio was not an eyewitness to the incident; his testimony
was merely based on the Traffic Accident Report prepared by SPO4 Edgar Reyes who himself did not witness
the incident. At any rate, nowhere in P/Sr. Insp. Cornelio’s testimony did he conclusively state that the
petitioner could not have been involved in the incident. For clarity, we reproduce the pertinent portions of
P/Sr. Insp. Cornelio’s testimony: From the foregoing, it is clear that P/Sr. Insp. Cornelio did not discount the
possibility that the victim could have been thrown on the side. He likewise admitted that the location of an
accident victim in relation to the vehicle would also depend on the speed of the vehicle and the point of
impact."
ADMISSIBILITY OF EVIDENCE RULE 130 I. INTRODUCTION:
A. While Rule 128 declared the two general requirements for admissibility of evidence, Rule 130 spells out
the particular requirements in order that certain kinds of materials be admitted as evidence.
B. Sources of Knowledge or Evidence
1. Those derived from the testimony of people whether oral or written
2. Those obtained from circumstances
3. Those obtained through the use of the senses
a). these are the coverage of Section 1 and are presently referred to as “Object Evidence ” . Formerly they
were referred top as “autoptic or demonstrative evidence”
b). The occupy the highest level because nothing is more certain than the evidence of our sense. “Physical
evidence is a mute but eloquent manifestation of truth and rates highly in the hierarchy of trustworthy
evidence”

OBJECTS AS EVIDENCE
Section1. Object as evidence. Object as evidence are those addressed to the senses of the court. When an
object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
I. COVERAGE: The definition covers any material that may be seen, heard, smelled, felt, or touched. They are
the “sensual evidence” and are grouped into:
A. Those exhibited to the Court or observed by it during the trial
1. The weapons used, the articles recovered or seized as subjects of an offense, the effects of the crime,
clothing apparels
2. The wound or scars in the body in physical injury cases
3. Inspection of the body of the accused and his personal appearance to determine his body built, physique,
height, racial characteristics, and similarities with another, in paternity suits
4. Observations as to the demeanor of witnesses
5. Re-enactment or demonstrations of actions
B. Those which consists of the results of inspections of things or places conducted by the court ( ocular
inspections) outside the court
1. The observations made by the parties are duly recorded, pictures and other representations may be
made such as sketches and measurements
2. Examples: inspection of the crime scene; disputed boundaries; objects which cannot be brought to court
C. Those which consists of the results of experiments, tests or demonstrations, which may be scientific
tests/experiments, or practical tests/demonstrations provided the conduct of experiments/tests is subject
to the discretion of the court.
1. Forensics or Microanalysis: the application of scientific principles to answer questions of interest in the
legal system. Applied most often in the examination of Trace Evidence to solve crimes based on the
Principle of Contact
a). Trace Evidence- evidence found at a crime scene in small but measurable amounts such as hairs, fibers,
soils, botanical materials, explosive residue
b) Principle of Contact: every person who is physically involved in a crime leaves some minute trace of
his/her presence in the crime scene or in the victim and often takes something away from the crime scene
and/or victim
II. REQUIREMENTS FOR ADMISSIBILITY
A. Inherent Requirements: Proof of 1. Relevancy and 2. Competency
B. Procedural Requirement: Proof of Authentication
1. The process of proving that the object being presented in court is the very object involved in the event
2. The purpose is two fold: (a) to /ensure preserve the Identity of the Object which is to prevent the
introduction of a different object and (b) to ensure/preserve the Integrity of the Object which is to ensure
that there are no significant changes or alterations in the condition of the object or that the object has not
been contaminated
3. Important component elements of the process of Authentication:
a). Proof of Identity: Through the testimony of a witness as to objects which are readily identifiable by sight
provided there is a basis for the identification by the witness which may either be:
(i) the markings placed by the witness upon the object, such as his initials, his pictures in the digital camera,
or
(ii) by the peculiar characteristics of the object i.e. by certain physical features which sets it apart from
others of the same kind or class by which it is readily identified. Examples: a hole caused by burning in a
sweater; the broken hilt of a knife
b). Proof of Identity and Integrity: By proving that there was no break in the Chain-of-Custody in the event
the object passed into the possession of different persons. This means proving the chronological sequence
through which the object was handled only by persons who, by reason of their function or office, can
reasonably be expected to have the right or duty to possess or handle the object. This is done by calling
each of these persons to explain how and why he came into the possession of the object and what he did
with the object.
(i) When the object passed into the possession of a stranger, then there is doubt as to the integrity, if not
identity of the object.
c). Proof of Integrity: By proving the Proper Preservation of the object which consist of showing that the
object was kept in a secure place as to make contamination or alteration difficult, and it has not been
brought out until its presentment in court.

4. Effect if there was improper authentication: The object maybe excluded upon proper objection, or that it
may not be given any evidentiary value. Thus in a criminal case, reliance thereon may be a ground for
acquittal. Example: there was conflicting testimony by the policemen as to the description of the bag
allegedly containing the drug. The conviction was reversed.
5. Authentication as applied to certain evidences:
a). As to pictures and photographs, maps, diagrams, the authenticity refers to proving the accuracy of the
things, persons, things or places depicted in the photographs which may through the testimony of : (i) the
photographer or (ii) any one who is familiar with the persons, things, places shown therein
b). As to tape recordings: ( Torralba vs. Pp., Aug. 22, 2005)
FACTS: The accused was convicted of libel. One of the evidence was a tape recording of the radio broadcast
which recording was made by the daughter of the complainant, but the daughter was not however
presented as a witness. Question: Was the tape recoding properly admitted?
HELD: The person who actually recorded should be presented in order to lay the foundation for the
admission of the tape recording. Before a tape recording is admissible in evidence and given probative
value, the following requisites must first be established:
(i). a showing that the recording devise was capable of taking testimony
(ii). a showing that the operator of the device was competent
(iii). establishment of the authenticity and correctness of the recording
(iv). a showing that changes, alterations, or deletions have not been made
(v). a showing of the manner of the preservation of the recording
(vi). identification of the speakers
(vii). a showing that the testimony elicited was voluntarily made without any kind of inducement
c). As to X-rays and cardiograms, motion pictures: same requirement as to tape recordings.
III. LIMITATIONS to the admission of Objects as evidence in addition to the inherent limitations of relevancy
and competency.
A. The admission must not cause undue prejudice to the court, such as those intended
B. The admission is subject to the demands of decency and propriety, unless the admission is extremely
necessary.
1. Exhibition of the private parts in sex cases
2. Presentation of the corpse or body parts
3. Re-enactment of violent or offensive acts
4. Examples:
a) The case of the old man accused of rape who had to show his private parts to prove he is incapable of
committing the crime
b). Case of William Alford charged of shooting a lawyer. He claimed self defense in that he shot the victim
who was beating him with a cane while the accused was lying down on the ground. Prosecution witness
claimed the bullet had driven downward. Earl Rogers demanded that the intestine of the victim be brought
to court and by the testimony of an expert, showed that the bullet traveled upward while the victim was
bending over, thereby confirming the claim of the accused.
C. Exclusion of objects which are offensive to man’s sensibilities or repulsive objects
1. Waste matters, human excreta
2. Carcasses of dead animals
3. Killing of an animal to prove a substance is poison
D. The procurement, presentation or inspection must not cause inconvenience or unnecessary expenses out
of proportion to the evidentiary value of the object evidence
E. The admission must not violate the right against self-incrimination
1. Handwritings: the general rule is that a person may not be compelled to produce a sample of his
handwriting as basis for determining his criminal liability as the author of a certain written document. This is
because writing is not a mere mechanical act but involves the application of the intellect. However, if the
accused testifies in his own behalf and denies authorship, he maybe compelled to give a sample of his
handwriting.
F. In cases of ocular inspections: (i) the condition of the thing or place must not have been altered (ii) there
be prior notice of the date, time and place given to the parties because the inspection is still part of the trial.
IV. NECESSITY OF PRESENTATION OF OBJECTS IN COURT
A. The best proof that an object exists is to present it to the court
B. The presentation is not necessary:
1. Where the existence of the object is not the very fact in issue, but is merely a collateral fact, of are
merely used as reference. Thus: (i) when a witness testifies that the accused was drinking a bottle of gin
when he threatened to shoot the witness, it is not necessary to produce the bottle. (ii) the witness claims
the accused threw a stone at his car, the presentation of the stone is not necessary.
2. Where the article has not been recovered or is outside the jurisdiction of the court. Examples: stolen
articles which are not recovered or brought elsewhere; unrecovered weapons used in crimes.
C. In crimes the gist of which is the illegal possession of an article, a distinction has to be made:
1. Where the article is common or familiar article such that it can readily be identified by sight, its
presentation is not necessary, its existence may be shown by testimony of witnesses.
Example: In a Prosecution for Illegal Possession of Firearms, the accused may still be convicted even
without the presentation of the gun in court.
a). PP. vs. Taguba ( 342 SCRA 199): In cases involving illegal possession of firearms the prosecution has the
burden of proving (a) the existence of the subject firearm and (b) the fact that the accused does not have
the corresponding permit to possess. As to the first requisite, the existence can best be established by the
presentation of the firearm … (but) there is no requirement that the actual FA itself must be presented in
court… Its existence can be established by testimony… thus the non presentation is not fatal to the
prosecution of an illegal possession case.
b). PP. vs. Taan, (506 SCRA 219, Oct. 30, 2006) “The non-presentation of the subject firearm is not fatal for
the prosecution as long as the existence of the firearm can be established by testimony”
2. Where the articles however are not common or familiar to ordinary persons and cannot be identified by
sight, they must be presented in court. Example: drugs and contraband items
V. RESULTS OF SCIENTIFIC TESTS AS OBJECT EVIDENCE
A. Forensics: application of scientific principles to answer questions of interest in the legal system. This is
applied most often in the examination of Trace Evidence to solve crimes based on the Principle of Contact
a). Trace Evidence- evidence found at a crime scene in small but measurable amounts such as hairs, fibers,
soils, botanical materials, explosive residue
b) Principle of Contact: every person who is physically involved in a crime leaves some minute trace of
his/her presence in the crime scene or in the victim and often takes something away from the crime scene
and/or victim
B. Requirements for Admissibility:
1. The Daubert Test: The U.S. Supreme Court, in the case of Daubert vs. Menell Dow Pharmaceuticals (1993)
came up with a test of reliability and directed that trial judges are to consider four factors when determining
the admissibility of scientific evidence, to wit:
a). whether the theory or technique can be tested
b). whether the proffered work has been subjected to peer review
c). whether the rate of error is acceptable
d). whether the method at issue enjoys widespread acceptance.
2. This Daubert Test was adopted by the Philippine Supreme Court when it finally accepted the result of
DNA testing as admissible evidence.
C. Scientific Tests Judicially Accepted:
1. Paraffin Tests although they are not conclusive that a person did or did not fire a gun
2. Lie Detection Test: The result is not admissible as evidence in the Philippines
3. Firearms Identification Evidence or Ballistic Test to determine whether a bullet was fired from a particular
gun
4. Questioned Document Test and Handwriting Analysis
5. Drug Tests on a Person
6. Toxicology or Test of Poison
7. Psychiatric examination
8. Voice Identification Test
8. Finger Printing
9. Identification through Dentures
10. Genetic Science such as DNA or Blood Test
Admissible evidence is any document, testimony, or tangible evidence used in a court of law. Evidence is
typically introduced to a judge or a jury to prove a point or element in a case.
Criminal Law: In criminal law, evidence is used to prove a defendant's guilt beyond a reasonable doubt.
Civil Law: in civil law, an element of a case is weighed by the standard of preponderance of the evidence,
which is a lower standard that "beyond a reasonable doubt."
However, before evidence can even be used in a criminal case, it must be considered “admissible”. Whether
evidence is admissible or not depends on several different factors that the court must analyze. Many
different items and statements are often excluded from evidence in a criminal trial because it is considered
“inadmissible”.
What Are Some Factors for Determining If Evidence Is Admissible?
The general rule is that all irrelevant evidence is inadmissible and all relevant evidence is admissible.
There are two basic factors that are considered when determining whether evidence is admissible or not:
Relevant – The evidence must prove or disprove an important fact in the criminal case. If the evidence
doesn't relate to a particular fact, it is considered "irreelvant" and is therefore inadmissible.
Reliable – Reliability refers to the credibility of a source that is being used as evidence. This usually applies
to witness testimony.
There are four basic types of evidence:
Demonstrative
Documentary
Real
Testimonial
EXAMINATION OF WITNESS—STAGES
DIRECT—CROSS—REDIRECT—RECROSS—
he presentation of evidence at trial begins when the attorney for the "plaintiff" (the person suing) begins
calling witnesses. The plaintiff's attorney does the initial questioning of the witness, which is called direct
examination. The purpose of a direct examination is to get the witness to testify about facts that support
the plaintiff's case.Generally, a witness can't give an opinion or draw conclusions from the evidence
unless that person has been qualified as an expert.
Direct Examination
During direct exams, attorneys can ask witnesses to identify demonstrative evidence, such as documents
and photographs and/or to explain what they saw, heard, or did in relation to the case at hand. For
example, a plaintiff's attorney in a car accident personal injury lawsuit may call a bystander to testify as
to what he or she saw just before, during, and/or after the accident, including what the weather was like,
what happened during the accident, and any other details the witness remembers from the day.During
direct examination, a judge will have some control over the scope and form of the questions. The judge
can stop repetitive questioning and prevent a lawyer from asking leading questions, which imply, suggest,
or prompt the witness to give a particular answer. However, a judge won't restrict questions unless the
other attorney makes an objection. If the plaintiff's attorney is leading the witness, then the attorney for
the "defendant" (the person being sued) can object to the question. After listening to the objection, the
judge will either sustain (grant) or overrule (deny) it and allow the witness to answer the
question.Generally, a witness can't give an opinion or draw conclusions from the evidence unless that
person has been qualified as an expert. For example, the bystander to the accident won't be allowed to
provide an opinion as to what caused the accident or what medical damages the plaintiff sustained—only
an accident reconstruction specialist or a medical expert can provide opinions on those topics.
Cross-Examination
After the plaintiff's attorney completes the direct examination, the defendant's attorney gets to cross-
examine the witness. Cross-examination is a fundamental right in the American system of justice.
Generally, cross-examination is limited to matters covered during the direct examination. The attorney
may ask leading questions during cross-examination.
Challenging Witness's Credibility on Cross-Examination
During cross-examination, the attorney tries to undermine or impeach the witness's credibility by
showing that the witness is not reliable or that the witness may have misstated something or even lied
during the direct examination. For example, if the witness said one thing in an accident report or during a
deposition and then testified differently at trial, the defendant's attorney can refer to the previous
statements and show inconsistencies in the story.
The attorney might also try to show that the witness is biased or prejudiced toward a party in the case.
Another way to undermine the witness's credibility is to show that the witness has a stake in the outcome
of the case, which might influence the testimony. The attorney can also question the witness about any
felony criminal convictions or about any crimes involving dishonesty. Just as on direct examination, the
opposing party's attorney can raise objections to the questions posed. The judge then rules on the
objection.
Redirect and Recross Examination
Following cross-examination of the witness, the plaintiff's attorney has an opportunity to ask the witness
follow-up questions regarding topics discussed during the cross. After this, the opposing attorney can
conduct a final recross examination of the witness, which is limited to the subjects brought up during the
redirect.
Defense's Case
Once the plaintiff's attorney has called all of the plaintiff's witnesses, the defendant's attorney begins
calling witnesses. The same procedure is followed as in the plaintiff's presentation of witnesses. The
defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will
conduct cross-examinations.
RULE 119==Section 12. Application for examination of witness for accused before trial. — When
the accused has been held to answer for an offense, he may, upon motion with notice to the other
parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and
residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to
afford reasonable ground for believing that he will not be able to attend the trial, or resides more than
one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other
similar circumstances exist that would make him unavailable or prevent him from attending the trial. The
motion shall be supported by an affidavit of the accused and such other evidence as the court may
require. (4a)
Section 13. Examination of defense witness; how made. — If the court is satisfied that the
examination of a witness for the accused is necessary, an order will be made directing that the witness be
examined at a specified date, time and place and that a copy of the order be served on the prosecutor at
least three (3) days before the scheduled examination. The examination shall be taken before a judge, or,
if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the
order be made by a court of superior jurisdiction, before an inferior court to be designated therein. The
examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified
of the hearing. A written record of the testimony shall be taken. (5a)
Section 14. Bail to secure appearance of material witness. — When the court is satisfied, upon
proof or oath, that a material witness will not testify when required, it may, upon motion of either party,
order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court
shall commit him to prison until he complies or is legally discharged after his testimony has been taken.
(6a)
Section 15. Examination of witness for the prosecution. — When it satisfactorily appears that a
witness for the prosecution is too sick or infirm to appear at the trial as directed by the order of the court,
or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally
examined before the court where the case is pending. Such examination, in the presence of the accused,
or in his absence after reasonable notice to attend the examination has been served on him, shall be
conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend
the examination after notice shall be considered a waiver. The statement taken may be admitted in
behalf of or against the accused.
  Keep your questions simple and clear  Asking 2 questions are the same time (it
 Organize your questions according to will be unclear which one the witness is answering)
chronology or issue (e.g. questions about debts  Being too broad – Don’t ask something
aw in BC then questions about child care…etc.) like “what has happened in your relationship with
 Be precise with questions your former spouse”
 Asking them to give their opinions –
unless they are an expert witness
After you have presented your opening statement you will be asked to call your witnesses. The other side Once you’ve finished examining your witness the other party will be allowed to cross examine them.
will also be calling witnesses. You will need to question your witnesses and will be given the opportunity to
question the other party’s witnesses. Before your trial you will want to think about questions to ask the Cross-Examination
witnesses. There are 2 ways to question witnesses: The other party will also be calling witnesses, once they have questioned them it is your turn. Asking
1. Direct Examination, and questions of the other parties witness is called cross-examination. You are allowed to ask leading questions.
2. Cross Examination. There are 2 reasons to cross –examine a witness:
1. To get evidence that supports your case. You’ll want to get the witness to agree to facts you
Direct Examination present.
You will need to question the witnesses you call. This type of questioning is called direct examination. For a 2. To discredit the witness. This approach is used so the judge will minimize or disregard evidence
direct examination you will need to ask open questions (questions that allow for explanations.) Open or comments that do not support your case. You can do this by bringing into question their memory or their
questions usually begin with words like who, what, why, where, how, tell me about, or describe. The truthfulness. Show that they may be biased or that they are inconsistent with their story.
opposite of an open question is a leading question. Leading questions as the name indicates leads the Dos and Don’ts of cross examination
answerer to a particular answer. They are usually answered with a yes or no. Leading questions allow you to
control what the witness talks about and often helps you get the witness to give a specific answer. This is The Dos The Don’ts
why you are not allowed to ask your own witnesses leading questions.
Here are some examples to show you the difference:
Open Question: - Describe the current parenting arrangements?
 Ask leading questions  Argue with the witness.
Leading Question – Nancy lives with you Monday to Friday correct?  In your questioning, move from general  Repeat a question asked during direct
Open Question: What happened Sunday February the 12th last year during Nancy’s drop off? to specific. examination that hurt your case.
Leading Question: You were an hour and a half late dropping Nancy off February 12th 2015 weren’t you?  Be clear and brief. Use simple language  Ask them to give their opinions – unless
Dos and Don’ts of direct examination  Listen to the answers given and note they are an expert witness
The Dos The Don’ts important ones  Comment about their answer, you can
 Treat the witness with respect do this during your closing statement
 Ask only one question at a time.
 Be precise with questions
 Ask questions that discredit their
testimony

LEGAL MAXIMS CRIMINAL LAW

Ignorantia facti excusat, ignorantia juris non excusat - Ignorance of fact excuses, ignorance of law does
not excuse.
Impunitas semper ad deteriora invitat - Impunity always leads to greater crimes.
In criminalibus probationes debent esse luce clariores - In criminal cases the proofs ought to be cleared
than the light.

Injuria non excusat injuriam - A wrong does not excuse a wrong.

Judge’s Tip:
You can only ask a witness questions.
You cannot insult or argue with them.
Lex prospicit not respicit - The law looks forwared, not backward
Mala fide - In bad faith.
Mala prohibita - Crimes prohibited.
Malitia supplet aesatem - Malice supplies age.

 Start by asking background questions  Asking leading questions: Questions

(What is your name? How do you know the
parties? etc.)
 Let the witness finish answering before
you ask the next question (don’t interrupt)
with answers in them.
 Ask long questions.
 Ask complex or confusing questions
Malo animo - With evil intent.
Mens rea - Guilty state of mind.
Mors dicitur ultimum supplicium - Death is called the extreme penalty.
Nemo bis punitur pro eodem delicto - No one can be twice punished for the same offence.
Nemo punitur pro alieno delicto - No one is punished for the crime of another.
Nil facit error nominis cum de corpore constat - An error of name makes not difference when it appears
from the body of the instrument.
Judex non potest esse testis in propira causa - A judge cannot be witness in his own cause.
Lex non oritur ex injuria - The law does not arise from a mere injury.
Necessitas non habet legem - Necessity has no law.
Qui facit per alium, facit per se - He who acts through another acts himself.
Qui peccat ebrius, luat sobrius - He who does wrong when drunk must be punished when sober.
Volenti non fit injuria - An injury is not done to one consenting to it.
CUSTODIAL INVESTIGATION
Enshrined under Section 12, Article III of the 1987 Constitution are the following rights:
“Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation
to and rehabilitation of victims of torture or similar practices, and their families.”
In the case of Morales, Jr. vs. Enrile, et al., the Supreme Court laid down the procedure to be followed
in custodial investigations, to wit:
“At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason
for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be used
against him. The person arrested shall have the right to communicate with his lawyer, a relative, or
anyone he chooses by the most expedient means _ by telephone if possible _ or by letter or messenger. It
shall be the duty of the arresting officer to see to it that this is accomplished. No custodial investigation
shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person
on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his
behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether
exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.”
In addition, in the case of People vs Marra, et.al., the Supreme Court defined the meaning of custodial
investigation, It held that:
“Custodial investigation involves any questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only
after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a
particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations
that lends itself to eliciting incriminating statements that the rule begins to operate.”
Also, in People vs Camat, et.al., the Court held further that:
“As interpreted in the jurisdiction of their origin, these rights begin to be available where the
investigation is no longer a general inquiry into an unsolved crime but has began to focus on a particular
suspect, the suspect has been taken into police custody, and the police carry out a process of
interrogation that lends itself to eliciting incriminating statements.”
person is taken into custody or deprived of his freedom in any significant manner. That includes "inviting"
a person to be investigated in connection of a crime of which he's suspect and without prejudice to the
"inviting" officer for any violation of law. If a person is taken into custody and the
interrogation/questioning tends to elicit incriminating statements, RA 7438 becomes operative (People
vs. Tan, GR 117321, February 11, 1998.) Application of actual force or restraint isn't necessary; intent to
arrest is sufficient as well as the intent of the detainee/arrested person to submit while thinking that
submission is necessary. It will also apply if the "invitation" is given by the military and the designated
interrogation site is a military outpost (Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)
When you say custodial investigation or interrogation, it refers to the questioning initiated by a police
officer AFTER a person has been taken into custody or deprived of his freedom of action. The key word
here is deprivation of freedom. When a person is arrested, the arresting officer must inform him of his
constitutional rights or more popularly known as the Miranda rights. He should be informed of the reason
for arrest, the constitutional right to remain silent where any statement made may be used against him
and the right to communicate to a lawyer or any family member or relative. It is also important to take
note that in this stage, the presence of a lawyer is required. Such right to counsel may be waived
however, it should still be done in the presence of a counsel otherwise, the waiver has no effect at all.
In case any of the constitutional rights mentioned are not properly observed and the accused made
statements that may be used against him, it will be treated as INADMISSIBLE, meaning it has no effect
and cannot be used against him in court. It's as if the accused did not say anything
After such investigation, it shall be put into writing where the accused will signify that he attest to the
truthfulness of the report. However, the contents must be explained especially when he does not know
how to read or write.
Preliminary Investigation
On the other hand, preliminary investigation is a proceeding to determine whether there is a sufficient
ground or well-founded belief that a crime has been committed and the accused is probably guilty and
should be held for trial. At this stage, it is still NOT a trial since its purpose is to determine the existence of
a probable cause. There is no need to present any evidence to prove or disprove guilt at this point since
only a quasi-judicial officer is conducting this.
The right to preliminary investigation is a substantial right although the absence of such does not render
the Information or complaint against the accused as defective. To afford the accused of its right to life and
liberty, the trial court must order the prosecuting officer to conduct a preliminary investigation.
INQUEST
An inquest is an informal and summary investigation conducted by the public prosecutor in a
criminal case involving persons ARRESTED AND DETAINED WITHOUT THE BENEFIT OF A
WARRANT OF ARREST issued by the court for the purpose of determining WHETHER SAID PERSONS
SHOULD REMAIN UNDER CUSTODY AND CORRESPONDINGLY CHARGED IN COURT. Sec. 6. When accused
lawfully arrested without warrant. – When a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an inquest has been conducted in accordance
with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed
by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation
in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal
Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and
the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused
may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule.
NOTES:
Section 6 is called INQUEST PROCEEDINGS, related to Rule 113, Section 5 [a] and [b] on warrantless arrest.
Inquests proceedings follow in cases where persons are arrested without the benefit of an arrest order or
warrant, or are caught in the act of committing a criminal offense.
Only offenses that would require preliminary investigation will have to go through inquest. Those not
requiring preliminary investigation need not go through an inquest proceeding.
Here, there is no need for preliminary investigation because there is a deadline for the accused to be
detained. Otherwise the peace officer will be guilty of arbitrary detention – delay in the delivery.
The purpose of the inquest proceedings in these cases is that while the state acknowledges the law
enforcers’ authority to arrest and detain persons without a warrant, the state must also ensure that these
persons are not unlawfully detained, and that they are not denied due process. The inquest establishes
whether the evidence is sufficient enough to seek court approval to keep the person in detention.
Prosecutors have a heavy burden to oversee police investigations in cases involving inquest proceedings
(DOJ Circular 61 on New Rules on Inquest). Each police station or headquarters should in principle also
have designated inquest prosecutors to process inquest procedures with a schedule of assignments for
their regular inquest duties.
The inquest requires the prosecutors to resolve the complaint the police filed in a prescribed period,
which varies depending on the gravity of the offense. Cases punishable with light penalties must be
resolved in 12 hours; those punishable with correctional penalties within 18 hours; and those punishable
by afflictive or capital penalties, within 36 hours. If the inquest prosecutor fails to complete the
proceedings in the prescribed period then the person must be released. - http://www.article2.org
How should the complaint or information be filed when the accused is lawfully arrested without warrant?
The complaint or information may be filed by a prosecutor without need for a preliminary investigation
provided an inquest proceeding has been conducted in accordance with existing rules. (Sec. 6, Rule 112,
Rules of Court)
Suppose there is no inquest prosecutor? Or there is an inquest prosecutor but he is not available, what
will happen now to the case?
In the absence of an inquest prosecutor, the offended party or any peace officer may file the complaint
directly in court on the basis of the affidavit of the offended party or peace officer. (Sec. 6, Rule 112, Rules
of Court)
What is an inquest?
An inquest is an informal and summary investigation conducted by a public prosecutor in a criminal case
involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for
the purpose of determining whether said persons should remain under custody and correspondingly
charged in court. (Section 1, DOJ Circular No. 61)
What is the remedy of the person arrested without warrant if he wants a preliminary investigation?
BEFORE the complaint or information is filed, he may ask for one provided that he signs a waiver of his
rights under Article 125 of the Revised Penal Code in the PRESENCE of his counsel. He may still apply for
bail in spite of the waiver. The investigation must be terminated within 15 days.
● Correlate this with Section 2 [e] of RA 7438 – Law Protecting Rights of Persons under custody – i.e. he
must be assisted by his counsel. Otherwise the waiver is not valid.
AFTER the complaint of information is filed but before arraignment, the accused may, within 5 days from
the time he learns of its filing, ask for a preliminary investigation. (Sec. 6, Rule 112, Rules of Court)
● The request for preliminary investigation should be made before plea, otherwise the right to ask for a
preliminary investigation shall be deemed waived.
● The period for filing a motion for preliminary investigation after an information has been filed against
an accused who was arrested without a warrant has been characterized as mandatory by the court. In
People vs Figueroa, the Supreme Court held that as the accused in that case did not exercise his right
within the five-day period, his motion for reinvestigation was denied.
What are the guidelines to safeguard the rights of an accused who has been arrested without a warrant?
1. The arresting officer must bring the arrestee before the inquest prosecutor to determine whether the
person should remain in custody and charged in court or if he should be released for lack of evidence or
for further investigation.
2. The custodial investigation report shall be reduced to writing, and before such report is signed or
thumbmarked if the person arrested or detained does not know how to read and write, it shall be read
and adequately explained to him by his counsel or by the assisting counsel provided by the investigating
officer in the language or dialect known to him, otherwise, such investigation report shall be null and void
and of no effect whatsoever. (DOJ Circular No. 61)
ARRAIGNMENT
Section 1. Arraignment and plea; how made. –
(a) The accused must be arraigned before the court where the complaint or information was filed
or assigned for trial. The arraignment shall be made in open court by the judge or clerk by
furnishing the accused with a copy of the complaint or information, reading the same in the language
or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution
may call at the trial witnesses other than those named in the complaint or information.
(b) The accused must be present at the arraignment and must personally enter his plea. Both
arraignment and plea shall be made of record, but failure to do so shall not affect the validity of
the proceedings.
(c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for
him.
(d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered for him.
(e) When the accused is under preventive detention, his case shall be raffled and its records
transmitted to the judge to whom the case was raffled within three (3) days from the filing of
the information or complaint. The accused shall be arraigned within ten (10) days from the date of the
raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment.
(f) The private offended party shall be required to appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other matters requiring his presence. In case of failure
of the offended party to appear despite due notice, the court may allow the accused to enter a plea of
guilty to a lesser offense which is necessarily included in the offense charged with the conformity
of the trial prosecutor alone.
(g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be
held within thirty (30) days from the date the court acquires jurisdiction over the person of the
accused. The time of the pendency of a motion to quash or for a bill or particulars or other causes
justifying suspension of the arraignment shall be excluded in computing the period.
When someone testifies under oath in a hearing, trial, or deposition, the other side will typically challenge
the witness through cross-examination. The opposition’s tools include not only the ability to probe the
witness’s actual ability to observe certain incidents, or the precision of the witness’s memory. The
opponent might also challenge the essential credibility of the witness – that is, the chances that the
witness is likely to be telling the truth, aside from what those facts may be. Going after a witness like this
is called “impeaching” a witness, and it’s a direct attack on the character of the person testifying,
attempting to show the judge or jury, “No matter what this person says, she doesn’t deserve to be
believed.”
Lawyers impeach witnesses by using one or more of several approaches, some of which are explained
below.
Impeaching a Witness Through Prior Inconsistent Statements
Confronting a witness with that person’s own statements that are at odds with the person’s testimony is
a very common way to impeach the witness. But the opposition can’t just introduce the statement
without giving the witness a chance to explain. The court may require that the lawyer disclose the
statement to the witness during the witness’s trial testimony, including the circumstances under which it
was made, and give the witness a chance to admit or deny it.
For example, suppose a witness to a fight testifies in court that the victim threw the first punch. At a bar
after the fight, however, the bystander described the scene to several listeners, telling them that the
defendant initiated the scuffle. The prosecutor, of course, will want the jury to disregard this witness’s
testimony in court, which (if believed), would give the defendant a self-defense argument. So the
prosecutor will want to impeach the witness, and will do so by questioning the witness about his
statements at the bar. After giving the witness a chance to explain them, the prosecutor will call the bar
patrons to testify, and will argue to the jury that because he has described the incident in inconsistent
ways, the bystander just can’t be believed.
Impeachment Statements Themselves Aren’t Necessarily True or Proven
It’s important to understand that when a lawyer successfully impeaches a witness, that impeachment
material doesn’t thereby become true or proved. For example, using the “prior inconsistent statement”
method explained above, suppose a bystander to an auto accident testifies for the defense that the
defendant’s car was traveling a mere 25 miles per hour. In his statement to the police, however, he stated
it was traveling at 50 mph. By bringing up the statement in the police report, the plaintiff’s lawyer has
called the witness’s credibility into serious question, but he has not proved that the defendant was
driving 40 miles per hour.
Impeaching a Witness By Showing Bias or Personal Interest
A traditional and common sense way to impeach a witness is to show that he or she is biased against one
of the parties, or has a personal interest in the outcome of the case. The relationship between the parties
may be good or bad. For example, imagine a witness who is a business partner with the defendant, who
stands to lose money if the defendant loses the case. The plaintiff may introduce evidence of the business
dealings between the two people, and show how the outcome of the case will directly affect the witness.
For this reason, the lawyer will argue, the witness’s testimony ought not to be believed.
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Impeaching a Witness with Character or Reputation Evidence
Witnesses who take the stand implicitly tell the jury, “I’m a truthful person, you can believe me.”
Opponents can challenge this assertion by introducing evidence to the contrary, calling witnesses who
will testify that the person’s reputation for truthfulness is woefully lacking. In most states, such evidence
is limited to showing the witness’s lack of veracity, not his bad moral character. In other words, a person
may be an adulterer, but he may not be impeached on this fact alone. If he’s a lying adulterer, however,
his reputation for lying could come into evidence.
Impeaching a Witness Who Has a Criminal Conviction
People who have previously broken the law may have such disrespect for the rule of law that they will not
respect the oath they take before testifying – so goes the rationale that underpins the ability of the
opposition to challenge that person’s credibility by pointing to a past criminal conviction. This ground for
impeachment is subject to state rules and, above all, the discretion of the trial judge. Most misdemeanor
convictions are deemed too minor to count; and even when the conviction is for a felony, the court will
consider its nature and age. For example, someone with multiple and recent convictions for perjury may
well have a passing commitment to the truth (and those convictions will be admitted to challenge the
witness's credibility). But someone who has a single, old conviction for assault may nonetheless be
extremely honest (albeit hot-tempered).
The Judge Has the Final Say
When a lawyer wants to impeach a witness during a trial before a jury, rules of court will often require
that the lawyer tell the judge and opposing counsel in advance, alerting them to the statement that the
lawyer intends to use. That preview is necessary because the judge has the power to disallow the
impeachment if the judge thinks that it’s prejudicial impact on the jury will outweigh its value in calling
the credibility of the witness into question. For example, imagine a defense witness in an auto accident
case, whom the plaintiff learns has lied on a U.S. citizenship application. Even if the plaintiff can prove
that the statement on the application is false, it’s unlikely that the judge will allow this incident of
untruthfulness to be shared with the jury. Though it might affect their view of the witness’s credibility, it’s
far more likely to prejudice them against the witness, all because of a statement that has nothing to do
with what happened at the accident scene.
RULE 138 PRESIDING JUDGE
Section 21. Authority of attorney to appear. — an attorney is presumed to be properly
authorized to represent any cause in which he appears, and no written power of attorney is required to
authorize him to appear in court for his client, but the presiding judge may, on motion of either party and
on reasonable grounds therefor being shown, require any attorney who assumes the right to appear in a
case to produce or prove the authority under which he appears, and to disclose, whenever pertinent to
any issue, the name of the person who employed him, and may thereupon make such order as justice
requires. An attorneys wilfully appear in court for a person without being employed, unless by leave of
the court, may be punished for contempt as an officer of the court who has misbehaved in his official
transactions.
What do Judges and Justices of the Peace do?
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What do Judges do? / What do Justices of the Peace do?
What do Judges do?
Judges work in three areas of jurisdiction which include:
the overwhelming majority of criminal and youth criminal justice cases in the province
certain types of family law cases, and
offences committed under provincial statutes.
Criminal Law Jurisdiction
Judges preside:
over virtually all adult criminal and youth criminal justice trials and sentencing hearings in Ontario – with
the exception of jury trials and certain serious criminal offences, which are heard by the Superior Court of
Justice
in preliminary hearings in criminal and youth criminal justice trials (a “preliminary hearing” is a court
hearing to decide whether the Crown has sufficient evidence to hold a trial. At the end of the hearing, the
accused will either be discharged or ordered to stand trial.)
in bail hearings (although, in Ontario, the vast majority of bail hearings are conducted by justices of the
peace)
Further, judges also have all the criminal law jurisdiction of a justice of the peace. This means, for
example, that a judge can issue search warrants. As specified by the Criminal Code, certain warrants can
only be issued by a judge, including “DNA warrants” (a warrant to seize bodily substances for forensic
DNA analysis) and “general warrants” (a warrant that authorizes a search that, if done without a warrant,
would violate s. 8 of the Charter of Rights and Freedoms as an unreasonable search or seizure).
An adult criminal or youth criminal justice trial presided over by a judge is a court of competent
jurisdiction under the Charter of Rights and Freedoms. This means that a judge has the authority to grant
the range of remedies provided under section 24 of the Charter. During a trial, a judge will hear and
weigh evidence, then deliver a final decision and, if a defendant is convicted, impose a sentence.
Family Law Jurisdiction
Ontario Court of Justice judges sit only in family court in jurisdictions in Ontario that do not have a Family
Court Branch of the Superior Court of Justice. In these “Unified Family Court” locations, the Family Court
of the Superior Court has jurisdiction in all family law matters. Further, the Superior Court has complete
jurisdiction throughout the province over divorce and the division of property.
In those parts of the province in which Unified Family Courts do not exist, judges of the Ontario Court of
Justice have jurisdiction over the following family law matters:
child protection matters under the Child and Family Services Act
spousal /partner support, and
custody, access and support relating to children.
Provincial Offences Jurisdiction
Most provincial offence matters are heard by justices of the peace. However, judges may also hear
provincial offence trials. In addition, they hear appeals in provincial offence matters.
Appointment of Judges
For information concerning the appointment process, including qualifications of judges, see the Courts of
Justice Act.
What do Justices of the Peace do?
Justices of the Peace work broadly in two main areas of jurisdiction – criminal law and provincial offences.
Criminal Law Jurisdiction
Justices of the peace preside:
over virtually all bail hearings in the province, and
in first appearance and remand courts (appearances that occur prior to a trial).
They also:
receive informations (the documents that commence criminal proceedings)
issue process in the form of summonses or warrants
deal with applications for the issuance of search warrants and production orders under the Criminal Code
deal with applications for peace bonds
consider applications for warrants to seize weapons, and
conduct weapons disposition and prohibition hearings.
Provincial Offences Jurisdiction
Justices of the peace exercise jurisdiction over the whole range of provincial offences and offences against
municipal bylaws.
In this regard, their duties include:
issuing process
receiving applications for warrants, and
presiding over provincial offence trials under statutes including the Highway Traffic Act, the Occupational
Health and Safety Act, the Trespass to Property Act, the Safe Streets Act, the Environmental Protection
Act, the Liquor Licence Act, and the Consumer Protection Act, and the Dog Owners’ Liability Act, and the
Workplace Safety and Insurance Act.
A provincial offences trial court presided over by a justice of the peace is a court of competent jurisdiction
under the Charter of Rights and Freedoms. This means that the justice of the peace has authority to grant
the range of remedies provided under section 24 of the Charter. During a trial, the justice of the peace
will hear and weigh evidence, then deliver a final decision and, if a defendant is convicted, impose a
sentence.
Other Duties
In addition to the duties listed above, justices of the peace have a collection of other responsibilities,
including:
conducting hearings and making orders under the Mental Health Act for examination of a person by a
physician
conducting hearings and issuing warrants to apprehend a child pursuant to the Child and Family Services
Act for children in need of protection
presiding at trials of municipal by-law infractions, and
presiding at trials prosecuted under certain federal legislation, including the Canada Shipping Act and the
Motor Vehicle Transport Act.
Home » Jurors
Role of the Judge and Other Courtroom Participants
The Judge
The judge presides over the trial from a desk, called a bench, on an elevated platform. The judge has five
basic tasks. The first is simply to preside over the proceedings and see that order is maintained. The
second is to determine whether any of the evidence that the parties want to use is illegal or improper.
Third, before the jury begins its deliberations about the facts in the case, the judge gives the jury
instructions about the law that applies to the case and the standards it must use in deciding the case.
Fourth, in bench trials, the judge must also determine the facts and decide the case. The fifth is to
sentence convicted criminal defendants
NILO HIPOS, SR. REPRESENTING DARRYL HIPOS, BENJAMIN CORSIO REPRESENTING JAYCEE CORSIO, and
ERLINDA VILLARUEL REPRESENTING ARTHUR VILLARUEL,
Petitioners,
- versus -
HONORABLE RTC JUDGE TEODORO A. BAY, Presiding Judge, RTC, Hall of Justice, Quezon City, Branch 86,
Respondent. This is a Petition for Mandamus under Rule 65 of the Rules of Court seeking a reversal of the Order dated
2 October 2006 of respondent Judge Teodoro A. Bay of Branch 86 of the Regional Trial Court (RTC) of
Quezon City, which denied the Motion to Withdraw Informations of the Office of the City Prosecutor of
Quezon City.
G.R. Nos. 174813-15

The facts of the case are as follows.

Present:
On 15 December 2003, two Informations for the crime of rape and one Information for the crime of acts
of lasciviousness were filed against petitioners Darryl Hipos, Jaycee Corsio, Arthur Villaruel and two
others before Branch 86 of the Regional Trial Court of Quezon City, acting as a Family Court, presided by
YNARES-SANTIAGO, J., respondent Judge Bay. The cases were docketed as Criminal Cases No. Q-03-123284, No. Q-03-123285 and
No. Q-03-123286. The Informations were signed by Assistant City Prosecutor Ronald C. Torralba.
Chairperson,

CARPIO,*
On 23 February 2004, private complainants AAA[1] and BBB filed a Motion for Reinvestigation asking
CHICO-NAZARIO, Judge Bay to order the City Prosecutor of Quezon City to study if the proper Informations had been filed
against petitioners and their co-accused. Judge Bay granted the Motion and ordered a reinvestigation of
NACHURA, and the cases.

PERALTA, JJ.

On 19 May 2004, petitioners filed their Joint Memorandum to Dismiss the Case[s] before the City
Prosecutor. They claimed that there was no probable cause to hold them liable for the crimes charged.

On 10 August 2004, the Office of the City Prosecutor issued a Resolution on the reinvestigation affirming
Promulgated: the Informations filed against petitioners and their co-accused in Criminal Cases No. Q-03-123284-86. The
Resolution was signed by Assistant City Prosecutor Raniel S. Cruz and approved by City Prosecutor Claro
A. Arellano.

March 17, 2009 On 3 March 2006, 2nd Assistant City Prosecutor Lamberto C. de Vera, treating the Joint Memorandum to
Dismiss the Case as an appeal of the 10 August 2004 Resolution, reversed the Resolution dated 10 August
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 2004, holding that there was lack of probable cause. On the same date, the City Prosecutor filed a Motion
to Withdraw Informations before Judge Bay.

On 2 October 2006, Judge Bay denied the Motion to Withdraw Informations in an Order of even date.
DECISION

Without moving for a reconsideration of the above assailed Order, petitioners filed the present Petition
for Mandamus, bringing forth this lone issue for our consideration:
CHICO-NAZARIO, J.:

CAN THE HON. SUPREME COURT COMPEL RESPONDENT JUDGE BAY TO DISMISS THE CASE THROUGH A
WRIT OF MANDAMUS BY VIRTUE OF THE RESOLUTION OF THE OFFICE OF THE CITY PROSECUTOR OF
QUEZON CITY FINDING NO PROBABLE CAUSE AGAINST THE ACCUSED AND SUBSEQUENTLY FILING A
MOTION TO WITHDRAW INFORMATION?[2]

Mandamus is an extraordinary writ commanding a tribunal, corporation, board, officer or person,
immediately or at some other specified time, to do the act required to be done, when the respondent
unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station; or when the respondent excludes another from the use and enjoyment of a
right or office to which the latter is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law.[3]
As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial
duty, not a discretionary one; mandamus will not issue to control the exercise of discretion by a public
officer where the law imposes upon him the duty to exercise his judgment in reference to any manner in
which he is required to act, because it is his judgment that is to be exercised and not that of the court.[4]
In the case at bar, the act which petitioners pray that we compel the trial court to do is to grant the Office
of the City Prosecutors Motion for Withdrawal of Informations against petitioners. In effect, petitioners
seek to curb Judge Bays exercise of judicial discretion.
There is indeed an exception to the rule that matters involving judgment and discretion are beyond the
reach of a writ of mandamus, for such writ may be issued to compel action in those matters, when
refused.[5] However, mandamus is never available to direct the exercise of judgment or discretion in a
particular way or the retraction or reversal of an action already taken in the exercise of either.[6] In other
words, while a judge refusing to act on a Motion to Withdraw Informations can be compelled by
mandamus to act on the same, he cannot be compelled to act in a certain way, i.e., to grant or deny such
Motion. In the case at bar, Judge Bay did not refuse to act on the Motion to Withdraw Informations; he
had already acted on it by denying the same. Accordingly, mandamus is not available anymore. If
petitioners believed that Judge Bay committed grave abuse of discretion in the issuance of such Order
denying the Motion to Withdraw Informations, the proper remedy of petitioners should have been to file
a Petition for Certiorari against the assailed Order of Judge Bay.
Petitioners counter that the above conclusion, which has been argued by the Solicitor General, is contrary
to a ruling of this Court, which allegedly states that the proper remedy in such cases is a Petition for
Mandamus and not Certiorari. Petitioners cite the following excerpt from our ruling in Sanchez v.
Demetriou[7]:
The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do
not find in the case at bar a clear showing by the petitioner of a grave abuse of such discretion.
The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases
by the President of the Philippines. But even this Court cannot order the prosecution of a person against
whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts
try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable showing of grave abuse of discretion that will
justify a judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call
for such exception is a petition for mandamus, not certiorari or prohibition.[8] (Emphases supplied.)
Petitioners have taken the above passage way out of its context. In the case of Sanchez, Calauan Mayor
Antonio Sanchez brought a Petition for Certiorari before this Court, challenging the order of the
respondent Judge therein denying his motion to quash the Information filed against him and six other
persons for alleged rape and homicide. One of the arguments of Mayor Sanchez was that there was
discrimination against him because of the non-inclusion of two other persons in the Information. We held
that even this Court cannot order the prosecution of a person against whom the prosecutor does not find
sufficient evidence to support at least a prima facie case. However, if there was an unmistakable showing
of grave abuse of discretion on the part of the prosecutors in that case, Mayor Sanchez should have filed a
Petition for Mandamus to compel the filing of charges against said two other persons.
In the case at bar, the Petition for Mandamus is directed not against the prosecution, but against the trial
court, seeking to compel the trial court to grant the Motion to Withdraw Informations by the City
Prosecutors Office. The prosecution has already filed a case against petitioners. Recently, in Santos v.
Orda, Jr.,[9] we reiterated the doctrine we established in the leading case of Crespo v. Mogul,[10] that
once a criminal complaint or an information is filed in court, any disposition or dismissal of the case or
acquittal or conviction of the accused rests within the jurisdiction, competence, and discretion of the trial
court. Thus, we held:
In Crespo v. Mogul, the Court held that once a criminal complaint or information is filed in court, any
disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive
jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on
what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should be
addressed to the court who has the option to grant or deny the same. Contrary to the contention of the
petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even before or
after arraignment of the accused. The only qualification is that the action of the court must not impair the
substantial rights of the accused or the right of the People or the private complainant to due process of
law. When the trial court grants a motion of the public prosecutor to dismiss the case, or to quash the
Information, or to withdraw the Information in compliance with the directive of the Secretary of Justice,
or to deny the said motion, it does so not out of subservience to or defiance of the directive of the
Secretary of Justice but in sound exercise of its judicial prerogative.
Petitioners also claim that since Judge Bay granted a Motion for Reinvestigation, he should have deferred
to the Resolution of Asst. City Prosecutor De Vera withdrawing the case.[11] Petitioners cite the following
portion of our Decision in People v. Montesa, Jr.[12]:
In the instant case, the respondent Judge granted the motion for reinvestigation and directed the Office
of the Provincial Prosecutor of Bulacan to conduct the reinvestigation. The former was, therefore,
deemed to have deferred to the authority of the prosecution arm of the Government to consider the so-
called new relevant and material evidence and determine whether the information it had filed should
stand.[13]
Like what was done to our ruling in Sanchez, petitioners took specific statements from our Decision,
carefully cutting off the portions which would expose the real import of our pronouncements. The
Petition for Certiorari in Montesa, Jr. was directed against a judge who, after granting the Petition for
Reinvestigation filed by the accused, proceeded nonetheless to arraign the accused; and, shortly
thereafter, the judge decided to dismiss the case on the basis of a Resolution of the Assistant Provincial
Prosecutor recommending the dismissal of the case. The dismissal of the case in Montesa, Jr. was done
despite the disapproval of the Assistant Provincial Prosecutors Resolution by the Provincial Prosecutor
(annotated in the same Resolution), and despite the fact that the reinvestigation the latter ordered was
still ongoing, since the Resolution of the Assistant Provincial Prosecutor had not yet attained finality. We
held that the judge should have waited for the conclusion of the Petition for Reinvestigation he ordered,
before acting on whether or not the case should be dismissed for lack of probable cause, and before
proceeding with the arraignment. Thus, the continuation of the above paragraph of our Decision in
Montesa, Jr. reads:
Having done so, it behooved the respondent Judge to wait for a final resolution of the incident. In
Marcelo vs. Court of Appeals, this Court ruled:
Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accused's motion
for review of the resolution of the investigating prosecutor or for reinvestigation and defers the
arraignment until resolution of the said motion must act on the resolution reversing the investigating
prosecutor's finding or on a motion to dismiss based thereon only upon proof that such resolution is
already final in that no appeal was taken thereon to the Department of Justice.
The resolution of Assistant Provincial Prosecutor Rutor recommending the dismissal of the case never
became final, for it was not approved by the Provincial Prosecutor. On the contrary, the latter
disapproved it. As a consequence, the final resolution with respect to the reinvestigation is that of the
Provincial Prosecutor, for under Section 4, Rule 112 of the Rules of Court, no complaint or information
may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the
provincial or city fiscal or chief state prosecutor. Also, under Section l(d) of R.A. No. 5180, as amended by
P.D. No. 77 and P.D. No. 911.[14]
As can be clearly seen, the statement quoted by petitioners from Montesa, Jr. is not meant to establish a
doctrine that the judge should just follow the determination by the prosecutor of whether or not there is
probable cause. On the contrary, Montesa, Jr. states:
The rule is settled that once a criminal complaint or information is filed in court, any disposition thereof,
such as its dismissal or the conviction or acquittal of the accused, rests in the sound discretion of the
court. While the prosecutor retains the discretion and control of the prosecution of the case, he cannot
impose his opinion on the court. The court is the best and sole judge on what to do with the case.
Accordingly, a motion to dismiss the case filed by the prosecutor before or after the arraignment, or after
a reinvestigation, or upon instructions of the Secretary of Justice who reviewed the records upon
reinvestigation, should be addressed to the discretion of the court. The action of the court must not,
however, impair the substantial rights of the accused or the right of the People to due process of law.[15]
In a seemingly desperate attempt on the part of petitioners counsel, he tries to convince us that a judge is
allowed to deny a Motion to Withdraw Informations from the prosecution only when there is grave abuse
of discretion on the part of the prosecutors moving for such withdrawal; and that, where there is no grave
abuse of discretion on the part of the prosecutors, the denial of the Motion to Withdraw Informations is
void. Petitioners counsel states in the Memorandum:
6.10. Furthermore, the ORDER dated October 2, 2006 of the Respondent Judge BAY consisting of 9 pages
which was attached to the URGENT PETITION did not point out any iota of grave abuse of discretion
committed by Asst. City Prosecutor De Vera in issuing his Resolution in favor of the sons of the
Petitioners. Hence, the ORDER issued by RJBAY is NULL and VOID in view of the recent ruling of the Hon.
Supreme Court in Ledesma vs. Court of Appeals, G.R. No. 113216, September 5, 1997, 86 SCAD 695, 278
SCRA 657 which states that:
In the absence of a finding of grave abuse of discretion, the courts bare denial of a motion to withdraw
information pursuant to the Secretarys resolution is void. (Underscoring ours).
6.11. It is therefore respectfully submitted that the Hon. Supreme Court disregard the argument of the
OSG because of its falsity.[16]
This statement of petitioners counsel is utterly misleading. There is no such statement in our Decision in
Ledesma.[17] The excerpt from Ledesma, which appears to have a resemblance to the statement
allegedly quoted from said case, provides:
No Grave Abuse of Discretion in the Resolution of the Secretary of Justice
In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness
of the justice secretary's resolution has been amply threshed out in petitioner's letter, the information,
the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the
motion for reconsideration - all of which were submitted to the court - the trial judge committed grave
abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and
ambiguous reliance on Crespo. The trial court's order is inconsistent with our repetitive calls for an
independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge
was tasked to evaluate the secretary's recommendation finding the absence of probable cause to hold
petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without
stating his reasons for disregarding the secretary's recommendation.[18] (Emphasis supplied.)

It very much appears that the counsel of petitioners is purposely misleading this Court, in violation of Rule
10.02 of the Code of Professional Responsibility, which provides:
Rule 10.02 A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language
or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a
provision already rendered inoperative by repel or amendment, or assert as a fact that which has not
been proved.Counsels use of block quotation and quotation marks signifies that he intends to make it
appear that the passages are the exact words of the Court. Furthermore, putting the words Underscoring
ours after the text implies that, except for the underscoring, the text is a faithful reproduction of the
original. Accordingly, we are ordering Atty. Procopio S. Beltran, Jr. to show cause why he should not be
disciplined as a member of the Bar.
To clarify, we never stated in Ledesma that a judge is allowed to deny a Motion to Withdraw Information
from the prosecution only when there is grave abuse of discretion on the part of the prosecutors moving
for such withdrawal. Neither did we rule therein that where there is no grave abuse of discretion on the
part of the prosecutors, the denial of the Motion to Withdraw Information is void. What we held therein
is that a trial judge commits grave abuse of discretion if he denies a Motion to Withdraw Information
without an independent and complete assessment of the issues presented in such Motion. Thus, the
opening paragraph of Ledesma states:
When confronted with a motion to withdraw an information on the ground of lack of probable cause
based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an
independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial
court is not bound by such resolution but is required to evaluate it before proceeding further with the
trial. While the secretary's ruling is persuasive, it is not binding on courts. A trial court, however, commits
reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation
and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction
over the criminal action.[19] (Emphases supplied.)Petitioners also try to capitalize on the fact that the
dispositive portion of the assailed Order apparently states that there was no probable cause against
petitioners:WHEREFORE, finding no probable cause against the herein accused for the crimes of rapes and
acts of lasciviousness, the motion to withdraw informations is DENIED.
Let the case be set for arraignment and pre-trial on October 24, 2006 at 8:30 oclock in the
morning.[20](Underscoring ours.)
Thus, petitioners claim that since even the respondent judge himself found no probable cause against
them, the Motion to Withdraw Informations by the Office of the City Prosecutor should be granted.[21]
Even a cursory reading of the assailed Order, however, clearly shows that the insertion of the word no in
the above dispositive portion was a mere clerical error. The assailed Order states in full:
After a careful study of the sworn statements of the complainants and the resolution dated March 3, 2006
of 2nd Assistant City Prosecutor Lamberto C. de Vera, the Court finds that there was probable cause
against the herein accused. The actuations of the complainants after the alleged rapes and acts of
lasciviousness cannot be the basis of dismissal or withdrawal of the herein cases. Failure to shout or offer
tenatious resistance did not make voluntary the complainants submission to the criminal acts of the
accused (People v. Velasquez, 377 SCRA 214, 2002). The complainants affidavits indicate that the accused
helped one another in committing the acts complained of. Considering that the attackers were not
strangers but their trusted classmates who enticed them to go to the house where they were molested,
the complainants cannot be expected to react forcefully or violently in protecting themselves from the
unexpected turn of events. Considering also that both complainants were fifteen (15) years of age and
considered children under our laws, the ruling of the Supreme Court in People v. Malones, G.R. Nos.
124388-90, March 11, 2004 becomes very relevant. The Supreme Court ruled as follows:
Rape victims, especially child victims, should not be expected to act the way mature individuals would
when placed in such a situation. It is not proper to judge the actions of children who have undergone
traumatic experience by the norms of behavior expected from adults under similar circumstances. The
range of emotions shown by rape victim is yet to be captured even by calculus. It is, thus, unrealistic to
expect uniform reactions from rape victims (People v. Malones, G.R. Nos. 124388-90, March 11, 2004).
The Court finds no need to discuss in detail the alleged actuations of the complainants after the alleged
rapes and acts of lasciviousness. The alleged actuations are evidentiary in nature and should be evaluated
after full blown trial on the merits. This is necessary to avoid a suspicion of prejudgment against the
accused.[22]
As can be seen, the body of the assailed Order not only plainly stated that the court found probable cause
against the petitioners, but likewise provided an adequate discussion of the reasons for such finding.
Indeed, the general rule is that where there is a conflict between the dispositive portion or the fallo and
the body of the decision, the fallo controls. However, where the inevitable conclusion from the body of
the decision is so clear as to show that there was a mistake in the dispositive portion, the body of the
decision will prevail.[23]
In sum, petitioners resort to a Petition for Mandamus to compel the trial judge to grant their Motion to
Withdraw Informations is improper. While mandamus is available to compel action on matters involving
judgment and discretion when refused, it is never available to direct the exercise of judgment or
discretion in a particular way or the retraction or reversal of an action already taken in the exercise of
either.[24] The trial court, when confronted with a Motion to Withdraw an Information on the ground of
lack of probable cause, is not bound by the resolution of the prosecuting arm of the government, but is
required to make an independent assessment of the merits of such motion, a requirement satisfied by the
respondent judge in the case at bar.[25]
Finally, if only to appease petitioners who came to this Court seeking a review of the finding of probable
cause by the trial court, we nevertheless carefully reviewed the records of the case. After going through
the same, we find that we are in agreement with the trial court that there is indeed probable cause
against the petitioners sufficient to hold them for trial. We decided to omit a detailed discussion of the
merits of the case, as we are not unmindful of the undue influence that might result should this Court do
so, even if such discussion is only intended to focus on the finding of probable cause.
WHEREFORE, the instant Petition for Mandamus is DISMISSED. Let the records of this case be remanded
to the Regional Trial Court of Quezon City for the resumption of the proceedings therein. The Regional
Trial Court is directed to act on the case with dispatch.
Atty. Procopio S. Beltran, Jr. is ORDERED to SHOW CAUSE why he should not be disciplined as a member
of the Bar for his disquieting conduct as herein discussed.
SO ORDERED.
JUDGE RULING WHEN CONFRONTED WITH MOTIONS
To invoke the rule, an interested party must file a praecipe with the clerk of the court
where the case is pending specifically designating the motion or decision the court has
delayed. Ind. Trial Rule 53.1(E). The trial court clerk’s first duty is to enter the date and
time of the filing on the praecipe. The trial court clerk is also required to record the
filing in the chronological case summary (CCS). The clerk then forwards the praecipe
and a copy of the CCS to the Chief Administrative Officer of the Indiana Office of Judicial
Administration. The clerk does not have a role in determining whether the submission
should be withdrawn; that task is now performed by the Chief Administrative Officer.
In determining if a ruling is timely, there are several scenarios to consider and,
naturally, exceptions. The general rule provides:
1. The court must either set a motion for hearing or, if no hearing
is required, enter a ruling on the motion within thirty (30) days
after the filing. Ind. Trial Rule 53.1(A). If the court has acted
within the thirty day period to schedule a motion for hearing,
the actual hearing itself may take place outside the thirty-day
window.1
2. Once a court holds a hearing on a motion, the court has thirty
(30) days to rule of the motion. Id. Allowing parties time to file
post-hearing briefs or findings does not automatically extend
the court’s time to rule.2
The exceptions to the general rule provide that the time limitation does not apply:
1. during any period after the case is referred to alternative
dispute resolution and until a report on the alternative dispute
resolution is submitted to the court,
2. when the court within thirty (30) days after filing, orders that
the motion be considered during the trial on the merits,
3. when the parties who have appeared or their counsel stipulate
or agree on the record that the time limitation for ruling on a
motion shall not apply or be extended for a designated period
of time,
4. the time limitation for ruling has been extended by the
Supreme Court,3
5. the ruling in question involves a repetitive motion, a motion to
reconsider, a motion to correct error, a petition for postconviction
relief4, or a ministerial post-judgment act.
An obvious question presents itself: when is a court deemed to have ruled on or decided
a motion? Under Ind. Trial Rule 53.1(C) a court is “…deemed to have ruled or decided
at the time the ruling or decision is entered into a public record of the court or at the
time the ruling or decision is received in the office of the clerk of the court for filing.” A
statement from the judge that he has decided how he is going to rule is not sufficient.5
TRIAL TECHNIQUE
TRIAL NOTE 0006:
IN PLEADINGS, LAWYERS USUALLY CITE THE FACT THAT THE TRIAL JUDGE HAS THE ADVANTAGE OF
OBSERVING THE DEMEANOR OF THE WITNESSES IN CONVINCING THE APPELLATE COURT THAT THE
DECISION OF THE TRIAL COURT MUST BE UPHELD. IS THERE A “SUAVE”, MORE CONVINCING,
AUTHORITATIVE, AND POETIC WAY OF STATING THE ABOVE?
YES. THE FOREIGN DECISION CITED IN SUPPORT OF THE ABOVE WHICH READS:
To him (THE JUDGE) appears the furtive glance, the blush of conscious shame, the hesitation, the sincere
or the flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the
scant or full realization of the solemnity of an oath, the carriage and mien. The brazen face of the liar, the
glibness of the schooled witness in reciting a lesson, or the itching overeagerness of the swift witness, as
well as the honest face of the truthful one, are alone seen by him.
………..Echoing a foreign court’s observation, this Court declared:
“Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last
resort. She oft hides in nooks and crannies visible only to the mind’s eye of the judge who tries the case.
To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or the
flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or
full realization of the solemnity of an oath, the carriage and mien. The brazen face of the liar, the glibness
of the schooled witness in reciting a lesson, or the itching overeagerness of the swift witness, as well as
the honest face of the truthful one, are alone seen by him.”[15] (PEOPLE V. DELOVINO, 247 SCRA 637, 647
(1995).
TRIAL NOTE 0007:
ARE THERE EXCEPTIONS TO THE RULE THAT THE DECISION OF THE TRIAL COURT BE AFFIRMED BECAUSE
THE JUDGE IS ABLE TO OBSERVE THE DEMEANOR OF THE WITNESSES?
YES. THE EXCEPTIONS ARE AS FOLLOWS:
(A) WHEN PATENT INCONSISTENCIES IN THE STATEMENTS OF WITNESSES ARE IGNORED BY THE TRIAL
COURT;
(B) WHEN THE CONCLUSIONS ARRIVED AT ARE CLEARLY UNSUPPORTED BY THE EVIDENCE; AND
(C) WHEN THE TRIAL COURT IGNORED, MISUNDERSTOOD, MISINTERPRETED AND/OR MISCONSTRUED
FACTS AND CIRCUMSTANCES OF SUBSTANCE WHICH, IF CONSIDERED, WILL ALTER THE OUTCOME OF THE
CASE
The rule, however, is not iron clad. This Court has enumerated exceptions thereto, namely: (a) when
patent inconsistencies in the statements of witnesses are ignored by the trial court; (b) when the
conclusions arrived at are clearly unsupported by the evidence; (c) when the trial court ignored,
misunderstood, misinterpreted and/or misconstrued facts and circumstances of substance which, if
considered, will alter the outcome of the case.[16] In this case, the trial court found the youthful Julie
credible and her testimony entitled to full probative weight. Accused-appellant has not sufficiently
demonstrated to this Court the application of any of the aforestated exceptions.
4. Be Well Groomed, Well Dressed, and Dignified. The same goes for your client, your witnesses, and your
co-counsel. Of course, every lawyer recognizes that you don't persuade jurors simply by pointing a suit at
them. But, it's a start. People often judge from appearances; jurors and judges are people.
5. Maintain and Attitude of Confidence, Politeness, and Courtesy to All Court Personnel and Opposing
Counsel. It helps to have the court staff, e.g., clerk, bailiff, court reporter, etc, on your side. Have a
pleasant expression on your face when deal with the court staff. Be nice. Be likeable. Don't be
condescending, arrogant or cocky. Treat opposing counsel in a civil and courteous manner, but do not
ever let the jury think that you have a cozy relationship with the other side. Avoid disparaging remarks
and acrimony. Abstain from sidebar remarks, i.e., disparaging comments or remarks, not addressed to the
court, made while opposing counsel is questioning or making a jury speech. Don't make comments
expressing your personal opinion. Don't attribute bad motives or improper conduct to the opposition,
unless you have proof. Stay in control of your emotions. Even if opposing counsel is a jerk, don't be
confrontational unless it advances your case, e.g., when a prosecutor has suppressed evidence favorable
to the defense. The cardinal rule: Don't get angry, except on purpose.
6. Prepare Complicated Stipulations in Writing Before You Present Them in Court. Don't make an offer or
request for a stipulation in front of the jurors unless you have vetted it with the opposition in advance of
the request or offer. When you have reached an oral agreement concerning stipulations, exchange drafts
with the opposition and cooperate in reducing it to writing. As general rule, do not offer any stipulation,
unless opposing counsel (and the defendant) has agreed to the stipulation and it has been reduced to
writing. In a criminal case, neither side has the duty to stipulate to relevant evidence, even though the
evidence may not be vigorously disputed. When you do think about stipulating to witness testimony,
recognize that there are two types of stipulation. First, you may stipulate that if any absent witness were
present his/her sworn testimony would be thus and so. Second, you may stipulate not only to the
testimony that the absent witness would provide but also to the truth and correctness of that stipulated
testimony. In the former situation, the credibility of the source of the stipulated testimony and the truth
and correctness of that testimony is still at issue. In the former situation, credibility and correctness is not
in issue because the truth and correctness of the stipulated testimony is no longer in issue. If the other
side has the burden of proof on the issue covered by the stipulation, you are much better of in stipulating
to the testimony but not the truth of it. If you have the burden of proof on the issue, try to get the
opposition to agree not only to the stipulated testimony but also to the truth and correctness of it. Tip: If
the defendant in a criminal case is stipulating to testimony in either situation, the prosecution should
ensure that the court admonishes the defendant regarding his constitutional rights to subpoena,
confront, and cross-examine witnesses and obtains a knowing waiver (1).
7. Be Ready with Grounds for Your Objections. Try to anticipate possible objections, the grounds for
them, and the probable responses. When you do object in the presence of the jury, make your objection
timely and specifically to the point. Cite the Rule of Evidence and/or the common designation, e.g.,
"inadmissible hearsay" for your objection. Don't argue the objection without court approval, and, even
then, argue at sidebar. Don't argue with the ruling of the court in the jury's presence. For more see
Objections.
8. Request the Use of Easels, Chalkboards, Document Cameras, Video Monitors and Recorders, Projectors,
Screens, and Other Equipment Well In Advance So That They May Be Set Up While the Court Is Not In
Session. Don't waste the jury's time. If you are going to display evidence, be certain that the medium of
display is ready for your use. If you are using an electronic medium, always have a hardcopy backup in
case of power failure. If you plan to use a demonstrative aid that requires a special display medium, let
the court know in advance what you are going to do.
9. Stay Out of the "Well" Unless You are Given Permission. The "well" is the area between the judge's
bench and the counsel tables. Judges typically insist that this area be kept clear of movement of people,
unless permission has been obtained to enter it. Permission to move into the well is gained by asking the
court, e.g., " May I approach the witness?" or "May I approach the bench?" or "May I have the reporter
mark this item for identification as State's Exhibit No. 1?" or "May the witness step down and approach
the chalkboard?" If you don't know the custom of the court regarding position and movement during
opening statement and jury argument, as a matter of housekeeping you may want to inquire of the court
out of the jury's presence, "Your Honor, do we have permission to move about the well during opening
statement and jury argument?" Note: In actual practice, you may find that while all judges will require
leave of court to approach the bench, many will allow you to approach the witness without leave of court
whenever necessary to show the witness a tangible item of evidence.
10. Stand When the Judge or Jury Enters or Leaves the Courtroom. Stand when court is opened, recessed,
or adjourned. Do the same when the jury enter the courtroom or begins to exit the jury box. Remember
to tell your client and witnesses to do the same. (1) This is a basic gesture of respect for the referee
and/or the decision-maker.
11. Stand When Addressing the Court, Being Addressed By the Court, Objecting and Responding to
Objections. Always stand when speaking to the court, being spoken to by the court, objecting, and
responding to objections. Those who do not stand when addressing the court, e.g., making or responding
to an objection, will sometimes have their words ignored by the court. When you don't stand, the judge
may imply ignore you or say, "I can't hear you, counsel." - meaning that your words to the court won't be
heard as long as you remain seated.
12. Be Respectful in Your Public Requests, Comments, and Dealings with the Court. Adopt a formal
approach that reflects courtesy and respect for the authority of the court. Common phrases that are used
when communicating with the judge include the following: "May it please the Court," used as the
greeting at the outset of your opening statement and your opening argument; "With Your Honor's leave
(or permission), I would like to, " used when seeking permission to do something; "As the court pleases,"
"Very well, Your Honor," and "So be it, Your Honor" - used when you are acceding (consenting) to an
unobjectionable oral direction or order of the court. "As the Court well knows," used when you are
getting ready to educate the judge about something s/he probably doesn't know. Don't interrupt the
judge. Listen to what the judge says. The judge has considerable discretionary power that can be used to
help you or hurt you, even in jury trials where s/he serves only as the referee. Something as nebulous as
the judge's tone of voice in ruling on objections can influence the juror's perceptions of your credibility. In
jury trials, treat the judge as though s/he was the foreperson of the jury. Every judge has quirks. In some
locales, there are published Judge's Bench Books that describe the peculiarities, predilections, and
requirements of each local judge. These may be useful reading if you are not personally familiar with the
way a certain judge runs his or her court.
13. Avoid Too Many Bench (Sidebar) Conferences. Jurors Don't Like to Feel Left Out of the Loop. Try to
anticipate the necessity for rulings and discuss them when the jury is not seated. You can often smooth
the road by using pretrial motions in limine. Once trial has started, you should seek to resolve sensitive
matters before court the jury is brought into the courtroom. If prejudicial publicity is an issue you may
want to seek an en camera hearing before the court. Jurors are suspicious of the motives of attorneys
who keep them from hearing everything that's going. When a bench or sidebar conference is unavoidable,
seek permission from the court before approaching the bench or sidebar. Rather than saying, "May we
approach the bench, Your Honor?", consider gilding the phrasing of your request in a way that will appeal
to the judge, e.g., "Your Honor, I need some guidance from the court. May we approach?." The upside of
approaching the bench is that sensitive comments made at the bench conference or sidebar are out of the
jury's earshot, and the trip to the bench or sidebar does give you a few precious moments to think about
what you are going to say when you get there.
14. Talk in the Third Person When Referring to Conduct or Requests of the Court and/or Opposing
Counsel. Talking in the third person means that when speaking to or about the judge you refer to the
judge as the "court" rather than as "judge so-and-so", e.g., "Would the Court entertain a request for a
brief recess?" and refer to the lawyer on the other side as "opposing counsel" rather than by the lawyer's
name, e.g., "Would the Court instruct opposing counsel to provide us with a copy of the witness' prior
written statement?"
15. Address All Remarks to Opposing Counsel Through the Court. Do not speak directly to opposing
counsel, except for perfunctory matters of courtesy. If you want opposing counsel to do something, ask
the court to ask opposing counsel to do it, e.g., "Would the Court ask opposing counsel to furnish us with
a copy of the bench brief that she provided to the Court?" Use the court as your intermediary, e.g., "Your
Honor, we would ask that the prosecution provide us with a copy of the witness' statement pursuant to
Rule 615 TRE." Don't turn and address or question opposing counsel directly, even when opposing
counsel makes sidebar remarks. If you need to confer with the opposition while the jury is in the box say,
"Your Honor, may we have your permission to confer with opposing counsel for a brief moment?'
16. In Some Trial Courts You Must Question the Witness from a Seated Position at Counsel Table, Unless
You Have Been Given Permission to Be On Your Feet. In Texas and in many federal courts, it is customary
for trial lawyers to question witnesses while counsel is seated at counsel table. Of course, there are
circumstances when you will be given permission to question while standing, e.g., when you need to
show a witness an exhibit. In some courts with modern evidence presentation consoles equipped with a
podium (lectern) clustered with an evidence camera and projector, a telestrator, a video replay unit, a
printer and computer terminals, counsel may question from the lectern housing this equipment. Also,
there is nothing to prevent the court from allowing you, upon request, to move about the courtroom
while questioning a witness. In Texas, TRE 611(a) gives the trial court the power to control the mode of
questioning witnesses. In many jurisdictions, e.g., Florida, Massachusetts, it is common for counsel to
question from a lectern. One caveat, if the court allows you to move about the courtroom, don't crowd
the jury; respect the juror's space, understanding that jurors are not free to leave their seats at will.
[Note: When dealing with a witness on cross-examination, you will have more authority with the witness
if the witness perceives that you control the courtroom space. It helps to be on your feet. Try to plan your
cross-examination so that you move toward the witness with exhibits that you touch. When you freely
move about and the witness is confined to the witness chair, you will have enhanced your control over
that witness.]
17. Do Not Thank the Court for Its Ruling, No Matter Whether the Ruling Is In Your Favor Or Not. Don't
thank the court for ruling for you or against you. If you thank the court for ruling in your favor, the court
may resent the implication that it is biased in your favor. If you thank the court for ruling against you and
the jury understands that the ruling was against you, expressing your gratitude makes you look stupid. If
you try to fool the jury into believing that the court was ruling for you by thanking the judge, you will
probably be caught in your deception.
18. Do Seek a Lifeline or Parachute Line from the Court When a Brain Cramp Causes You to Temporarily
Lose Your Train of Thought, Saying, "May I Have a Moment, Your Honor?" or "Would the Court indulge
me for a moment?" At some point in your career as a trial lawyer, you will need to seek help from the
court because your brain has shut down temporarily. It will happen eventually. For some reason, lawyer
brains take a brief holiday during periods of courtroom stress. We call it losing your train of thought or
going brad dead. When this happens, remain calm, don't blanch or revert to bed-wetting. You may decide
to camouflage your predicament by pretending to clean your spectacles or getting a drink of water or
taking out your pen and scribbling or rummaging among the papers on your table. All of these stalls may
provide the few seconds you need for your brain housing unit to kick in. But there is an easier way. Simply
say those magic words, "May I have a moment, Your Honor?" This is the international distress call
between lawyers and judges, and even the most difficult judges will honor it. Another variation is, "Will
the court indulge me for a moment?" You may want to disguise your request by adding "I want to be sure
to get this exactly right." The judge will almost always give you a few seconds to get back on track. Why?
Because the judge probably suffered a few brain cramps in his/her career as a trial lawyer and
sympathizes with you. Use the garnered moment to gather your thoughts together, and proceed when
ready.
19. Don't Quarrel With Opposing Counsel or the Court. The most obvious sign of an aggressive rookie
advocate is the propensity to quarrel with the court and opposing counsel about everything. Don't do it.
In quarreling, stature is lost. Make a pact with yourself to avoid making disparaging or acrimonious
remarks to or about opposing counsel. Be assertive rather than aggressive in your conversations with the
court and the opposition. It does your cause no good to engage in undignified or discourteous conduct
that is degrading to the court or opposing counsel. There is a difference between quarreling with the
court and counsel and standing up for your position by making valid legal and factual arguments with
regard to objections and responses. Effective argument is part of what you are being paid to do. You
aren't paid to whine. If you want to argue a point with the court, ask if you may be heard.
20. When Your Opponent Blunders, Don't Rejoice, But Don't Pick Him Up Either. Always be civil to the
opposition. Recognize that the trial is a contest. When the opposition falters or blunders, do not gloat,
thrill, or rejoice. On the other hand, do not save the opponent from the jaws of defeat. If opposing
counsel is proverbially digging himself into a hole, let him keep digging.
21. Deal with the Non-Responsive Witness Without Asking the Court to Help You. Let the Court Volunteer
to Admonish the Witness. When you run into a non-responsive witness, get control of the witness and
demonstrate that the witness is ducking your questions and answering unasked questions. As a general
rule, don't ask the court to do your dirty work. Try to avoid the usual practice of beseeching the judge to
admonish the witness to answer the question, e.g., "Would the Court please instruct the witness to listen
to the question that I ask and to answer that question without adding gratuitous thoughts?" Instead, deal
with the witness yourself. You can learn how to deal with the non-responsive witness without having to
seek help from the judge. Various techniques for getting control of the non-responsive witness are
detailed in the CCJA monograph, Cross-Examination in Criminal Cases and on the Cross-Examination page.
If you are skilled, you won't need the judge's help with the witness who doesn't want to answer the
question. If the witness simply refuses to be corralled, the judge will usually volunteer to rein him in.
Accept the court's help, but don't ask for it.
22. Don't Ask the Court to Sanction Your Opponent. You appear weak when you ask the court to punish
your opponent. It's better to punish your opponent personally. How do you level the playing field?
Outlawyer 'em!
23. When You Want the Jurors to See an Exhibit, Ask to Have It "Passed" to the Jury of "Displayed" for the
Jury. Leave Out the Stuffed-Shirt Word "Publish." In my trial advocacy course, don't say, "May this exhibit
be published to the jury?" This prissy language, fostered by law schools and now appearing commonly in
court, is too over the top for me. Use plain and simple language that jurors understand and say, "May this
exhibit be passed (or displayed or shown) to the jury?" [Note: If, when dining, you are the type who asks
your dinner partner to "publish the mashed potatoes," disregard this suggestion.]
24. When You Want the Jurors to See Something Favorable that is Happening in Court Make Sure that All
the Jurors Can See If something of favorable importance to your theory of the case is happening in court,
make sure that all the jurors can see. Simply say to the court, "Your Honor, we'd like to be sure that all
the jurors can see this (describe the demonstration or thing, e.g., 'this demonstration' or 'this scale
model'.)" or "Your Honor, will you inquire of the jury whether everyone can see?" You'll solve the
problem. The added benefit is that you have alerted inattentive jurors that they should be observing
these upcoming proceedings with care.
25. Don't Ever Pass an Item of Evidence Directly to a Jury Member. Once you have the okay from the
judge to have the exhibit passed to the jury, give the item to the court bailiff; one of whose jobs is to pass
and retrieve evidence to and from the jurors. Do not ever pass anything directly from your hand to a
juror's hand. [This is consistent with the general rule that under no circumstances are you to attempt to
communicate in any manner, other than in open court during the trial, with any member of the jury prior
to receipt of the verdict and release of the jurors by the court. Note that some jurisdictions, e.g., federal,
place very severe restrictions upon post-trial contact between lawyers and jurors.]
26. Don't Echo (Parrot) or "OKAY" the Witness' Answers. These are both common phenomena among
inexperienced lawyers. Echoing (parroting) is simply repeating the witness' favorable answer before you
ask your next question. It's an unsophisticated effort to use the figure of speech know as repetition as a
mode of persuasion. The much preferred technique of repetition is to simply loop a favorable answer into
your next question. The most difficult habit to avoid is the "OKAY'" syndrome. Odds are that you will find
yourself unconsciously saying "Okay" immediately after the witness answers your question. If you are
desperately in need of self-assurance, you will say "Okay" as a response to almost every answer that you
get on direct examination. The best way of curing yourself of parroting and the loathsome and distracting
addiction to the word "Okay" is to watch yourself doing it on video. [In my trial advocacy class, I ring a
small dinner bell every time a major violator says "Okay" as a response. It cures the habit.]