LAW 6C – COURT TESTIMONY

Compiled by:
ATTY.BANSALAN B. METILLA
B.S.Crim./Ll.B.
 INTRODUCTION
1. The Essential Trial Technique:
Each lawyer may have different trial technique, as
there is no fixed and hard rule on how to go on trial.
However, each one believes that the most important
technique is to plan the trial in advance. A trial plan may
be simple or elaborate.
a. Visual Trial Plan – one that can be kept purely in
mind; and
b. Written Trial Plan - one reduced in writing.
Trial plan is only guide of the lawyer which may be
followed closely, modified or abandoned as the order of
trial of the case progresses.
 THE ACTIONS
A civil action is one by which a party sues another for
enforcement or protection of civil rights, or the prevention or redress
of wrong, which may either be ordinary or special [Sec. 3 (a), Rule 1,
RRC].
It commences by the filing of the original complaint in court
(Sec. 5,Id.) of competent jurisdiction (BP Blg. 129; R.A 7691).
A cause of action is the act or omission by which a party
violates a right of another (Sec. 2, Rule 2, RRC). It pertains to the
allegation of ultimate facts in a pleading (Sec. 1, Rule 8, RRC). Its
elements are:
1. the legal right of the plaintiff;
2. the correlative obligation of the defendant;
3. the act or omission of the defendant in violation of said
legal right. (Diaz vs. Diaz, 331 SCRA 302)
 A right of action is a remedial right, depending on the
substantive law belonging to some persons (Marques vs. Varela, 92
Phil. 375)
A criminal action is one by which the state prosecutes a
person for an act or omission punishable by law (Sec. 3(b), Rule 1 RRC).
It shall be initiated by filing a written complaint or information, with
proper office or court, in the name of the People of the Philippines,
and against all persons who appear to be responsible for the offense
involved (Sec. 1 & 2, Rule 110, RRC).
An offense is either generally a crime or restrictedly a felony.
A felony is an act or omission punishable by law (Art. 3, RPC).
It is a specific crime punishable under the RPC.
 A crime is generally an act or omission violating a
special penal law, statute or a municipal ordinance, or any
offense as defined and penalized under the RPC.
All felonies are crimes, but no all crimes are felonies.
If a civil action must be based on a cause of action
(Sec. 2, Rule 1, RRC) by analogy, a criminal action must also be
based on a cause of accusation having its three (3) elements:
(1) the legal authority of the state; (2) the correlative
obligation of the accused; and (3) the act or omission of the
accused violating said legal authority (Sec. 9, Rule 110, RRC).
This third element certainly refers to the elements of the
crime.
 In the institution and prosecution of both civil and
criminal actions, the plaintiff may encounter the adverse
party’s valid defenses, such as: (a) the grounds of a motion to
dismiss (Sec. 1(a) to (j), Rule 16) or a motion to quash (Sec.
3(a) to(i), Rule 117); (b) the grounds of objection to the
examiner’s oral offer, to the examiner’s questions, to the
witness’ answers, and to the admissibility of the object, real,
demonstrative or documentary exhibits (Sec 3, Rule 128, Rule
130 & 132); and (c) the grounds of a demurrer to evidence
(Sec. 1, Rule 33 & Sec. 23, Rule 119)
If a defense relied on is based on law, the pertinent
provision thereof and their applicability to him shall be clearly
and concisely stated (Sec. 1, par. 2, Rule 8)
 On the other hand, if a defense is based on facts, the
defendant must specify each material allegation of fact the
truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he
relies to support his denial.
In a criminal case, a denial or a defense (whether
based on facts or law) shall be manifested in open court,
because the accused must be arraigned in open court, must
be present at the arraignment, and must personally enter his
plea. A plea of not guilty shall be entered for him, if he
refuses to plead, or makes a conditional plea, or pleads guilty
but presents exculpatory evidence, or withdraws his
improvident plea (Sec. 1 (a) to (d), nd Sec. 5, Rule 116)
 THE TRIAL
Trial is the period of the introduction of evidence by
both parties. Witnesses are presented to give testimonial
evidence and cross-examined by the opposing party. The
order of examination of the witness are as follows:
a. Direct examination by the proponent;
b. Cross-examination by the opponent;
c. Re-direct examination by the proponent;
d. Re-cross-examination by the opponent.
Before a witness testifies, his testimony must first be
formally offered as to the purpose.
After the testimony of the last witness, objects and
documentary evidence are formally offered, either orally or in
writing, stating the purpose for which they are offered.
 After plaintiff’s presentation of evidence, it is deemed to have
rested its case, and it is now the turn of the defendant to present
evidence. However, the defendant has an option to file a demurrer to
evidence, if he believes that the evidence for the prosecution is
insufficient to prove his guilt beyond reasonable doubt. If his
demurrer is granted, then the case is ordered dismissed and the
accused is acquitted. However, if the demurrer is denied, the accused
may present evidence for his defense, if he has filed a motion for leave
of court to file demurrer to evidence, otherwise, his right to present
evidence is deemed waived and forfeited.
After presentation of defendant’s evidence, the prosecution
may present rebuttal evidence and the accused may likewise present
sur-rebuttal evidence. Thereafter, the court may allow the parties to
submit memoranda, except in cases falling under the rules on
summary procedure.
 The order of trial, however, may be modified by
conducting first a preliminary hearing of defendant’s
affirmative defense (Sec. 6, Rule 16) or reversed by
hearing first the accused’s affirmative defenses (Sec.
11(e), Rule 119), both in court’s discretion.
Thus, appeal from order denying motion to reverse
order of trial is not proper (PP vs. Marcial, G.R. No.
1528654-65, 9/27/06). Moreover, the conduct of trial is
under judge’s control, and as how to apply the rules
depends to some extent upon his own interpretation of
such rule (Dizon vs. De Borja, 37 SCRA 46).
 THE JUDGMENT/DECISION
Judgment is the adjudication by the court that the accused is
guilty or not guilty of the offense charged and the imposition on
him of the proper penalty and civil liability, if any. It must be
written in official language, personally and directly prepared by the
judge and signed by him and shall contain clearly and distinctly a
statement of the facts and the law upon which it is based.
Basically no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on
which it is based (Art. VIII, Sec. 14, 1987 Phil. Constitution).
No decision (opinion) shall be issued without the judgment
(dispositive part). The latter is the final order while the former is
merely a statement ordering nothing (Velarde vs. SSS, G.R. No.
159357, April 28, 2004)
 A valid written decision/judgment shall consist of three (3)
essential parts:
1. The body – the court’s legal opinion or ratio decidendi
stating clearly and distinctly the facts and the law upon which it is
based;
2. The dispositive portion – the court’s judgment (City of
Manila vs. Entote, 57 SCRA 744), which disposes the case and declares
or settles the rights and obligations of the parties (Espiritu vs. CFI of
Cavite, 166 SCRA 394); and
3. The signature of the judge who directly and personally
prepared the judgment, written in an official language, and filed with
the clerk of court.
In essence a judgment or decision is a clear and distinct
application of the substantive law to the clear and distinct facts of the
case or defense. These facts are nothing but the TRUTH.
 THE CHANNELS OF TRUTH
The “channels of truth” alluded in the opening
ecumenical prayer before the start of court’s session are
undoubtedly the witnesses testifying in court, under oath or
affirmation (Sec. 1, Rule 132) “to tell the truth and nothing but
the whole truth”. Considering that the witnesses must answer to
counsels’ questions (Sec. 3, Rule 132), the examining counsels
are also the channels of truth.
Further, the courts admitting and weighing the evidences
in ascertaining the truth respecting a matter of fact (Sec. 1, Rule
128), are the channels of truth.
Likewise, the court’s personnel are the channels of truth
because they are assisting the court in the management and
disposition of cases.
 THE CONTEXT OF TRUTH
One context that we humans live in is the context of
fact. This is shown by the way how we make our statements.
What we say can be judged to be true or untrue in terms of
this realm of fact – in the way how we utter the words
coupled with our own gestures. If I say, for example, that “it is
raining” my statement can be judged to be true or false on the
factual situation in which we live. My statement is true if, as
a matter of fact, it is raining. Such statement of fact possesses
objectively since it stands independent of my personal
judgment.
A second context that verifies many of our human
statements is that of experience. Such a context goes beyond
facts since our human experience includes meaning, value,
beauty, morality (obligation and guilt) and holy.
 Another context in which we humans live is the
realm of mathematics, a context which objective and
communal truth can be affirmed.
There are also context of science which give a
basis for the truth or non-truth of many of our
statements.
A further context of truth is that of religion. Any
human religion has a certain tradition made up of
certain documents, forms of worship and teaching. The
religious truth that “God created the world” can be
substantiated by reasons that are presented.
Another realm that gives a basis for true
statement is the realm of philosophy. Some truths of
philosophy are true because they are self-evident .
 There is a type of philosophy where truth is based on
the logic of certain process of thinking. The conclusion of a
correct syllogism, for instance, is true because it follows a
logical process which is valid, arguing from the premises of
that syllogism to its conclusion.
In sum, the contexts of truth may be factual,
experiential, scientific, mathematical, religious, and
philosophical.
Human knowledge or understanding includes the field
of law and it is in that context which supports the truthfulness
of the statements made by a witness in a court proceeding.
 THE LEGAL TRUTH
The legal truth, like in other contexts of truth, is also complex.
It is of three (3) kinds:
1. Legislative Truth – The provision in a particular act are true
because right and justice are intended by the law-making body to
prevail (Art. 10, NCC).
2. Administrative Truth – The actions, proceedings and
statements made by the executive branch of the government, its
departments , agencies and instrumentalities are true because of the
legal presumption that official duties are regularly performed (Sec.
3(m), Rule 131, RRC), and executed according to the laws and the
Constitution (Par 3, Art 7, NCC).
3. Judicial Truth – The clear and distinct statements of fact
and law in a judgment are true because the facts to which the law
being applied are duly ascertained in a judicial proceeding according to
the means sanctioned by the rules or law.
 In any judicial proceeding, the witness’
statements of facts which appear to be true according to
their own beliefs, personal views, or novel contexts of
truth, must be reduced to the truth of law, or clarified
and proved pursuant to the Revised Rules on Evidence.
Evidence as defined under Rules of Court, is the means
sanctioned by these rules of ascertaining in a judicial
proceeding the truth respecting a matter of fact (Sec. 1,
Rule 128), judicially conceived as “judicial truth” (Cf.
Flores v. CA, 259 SCRA 618).
Let’s take again the different contexts of truth in
relation to the context of judicial truth through the
following examples:
Factual Truth:
The witness’ statement of fact that the accused-minor stabbed
another minor with the use of a kitchen knife is legally true when the witness
testifies according to his personal knowledge, that is, derived from his own
perception. It is untrue when the witness merely testifies as to what was told
to him by another person (Sec. 36, Rule 130, RRC). The latter cannot be
considered true because under the precepts of the law it is considered as
hearsay.

Experiential Truth:
The test to determine the value of the testimony of a witness is
whether such testimony is in conformity with knowledge and consistent with
experience of mankind. Whatever is repugnant to these standards becomes
incredible and lies outside of judicial cognizance. Evidence to be believed
must not only come from the mouth of a credible witness but must also be
credible in itself (People vs. Patano, G.R. No. 129306, March 14, 2003. CDSCD,
p. 636)
Scientific and Mathematical Truth:
These become the legal truths after the court allows
the expert witness possessing special knowledge, skill or
training to give his opinion on a special matter in issue (Sec.
49, Rule 130), and after such testimony is offered and duly
considered in evidence (Sec. 34 &35, Rule 132).
Religious Truth:
The Ten Commandments of God and other religious
teachings are already contained in our Revised Penal Code,
Civil Code, Muslim Code, Agrarian Reform Code, Bldg. Code,
Labor Code, Tax Code, Election Code, Environment Code,
Rules Court, etc.
Philosophical Truth:
Its five (5) types: self-evidence, logic, reason,
coherence, and human experience, have been made as
basis of the Rules on Evidence, Revised Rules of Court.
For instance, Rule 129, Sections 1-4, on judicial
notices and judicial admissions; Rule 130, Sections 26-35,
on admissions, confessions, conduct and unaccepted
offer; and Rule 131, Sections 2-3, on legal presumptions
are rooted from the self-evident type of philosophical
truth.
 Rule 132, Section 15, on exclusions and separation of
witnesses on the other hand belongs to the coherent type of
philosophical truth. It fits or jibes with the other context of
truth – the religious truth. The book of Susana tells us that
the two complaining witnesses against respondent Susana
were directed to testify exclusively and separately (Dn. 13:51-
59,NAB).
Rules 130, Section 49, on expert witness’ opinion
belongs to the reasoning type of philosophical truth, as the
witness is required to give reasons of his expert testimony.
Moreover, Rule 131, Section 1, on burden of proof, and Rule
133, Section 1-7, on weight and sufficiency of evidence also
belong to the reasoning type of philosophical truth. The facts
in issue require sufficient supports or reasons.
 Rule 130, Section 50, on ordinary witness’ opinion
belong to the experiential type of philosophical truth.
The witness testifies merely on the basis of his familiarity,
knowledge and acquaintance of a matter in issue.
Other sections of Rule 130, on the presentation of
evidence, also belong to the logical type of philosophical
truth. The testimonial, object or documentary evidence
presented requires the prior established evidence.
Otherwise, it is generally objectionable for being
improper, incompetent or irrelevant. Specially it is
objectionable for lack of foundation or no basis at all.
 THE HYPOTHESIS OF A CASE/DEFENSE
The hypothesis of a case is a provisional application of
“the law or rule of reason to the existing conditions” or facts
of the case, which the investigating counsel has gathered from
his client and probable witnesses.
PROBLEM: Mr. A sold to Mr. B a parcel of land presently
occupied by Ms. C., claiming as co-heir of Mr. A, who refused
to vacate the subject land, despite of Mr. B’s several letters of
demand to vacate therefrom.
QUESTIONS: What is the legal remedy of Mr. B against Ms. C?
What about Mr. A, what is his remedy? After considering all
the state of facts or existing conditions of a case, which of Mr.
B’s tentative legal remedies is the most appropriate? As to
Ms. C, what would be her tentative provisional theory, or
hypothesis of defense?
Supposed Ms. C stabbed Mr. B with a kitchen knife
inside her house, what would be her probable
defense? Denial? Alibi? Self-defense?
Misidentification of her identity? Frame-up?
Defense of right to property? Accident? or Illness?
Once a hypothesis is finally selected by the
counsel as the most legally feasible for his client’s
case or defense, this becomes a party’s definite
legal theory.
 THE PARTY’S DEFINITE LEGAL THEORY
The party’s definite legal theory is the counsel’s
definite application of the law to the facts of a case or
defense.
As a rule, a party who deliberately adopts a certain
theory upon which case is tried and decided by the lower
court will not be permitted to change theory on appeal.
Points of law, theories, issues and arguments not brought
to the attention of the lower court need not be, and
ordinarily will not be, considered by the reviewing court,
as these cannot be raised for the first time at such late
stage (PPA vs. City of Iloilo, G.R. No. 109791, July 14,
2003, CDSCD, P. 100).
 In said case, respondent City of Iloilo sought to collect
from Petitioner PPA real property tax and business taxes . It
alleged that petitioner is engaged in the business of arrastre
and stevedoring services and the leasing of real estate; and it
is a declared and registered owner of a warehouse used in its
business operation.
In its pleading therein, the petitioner PPA argued that
as government-owned corporation it is exempt from paying
real property taxes by virtue of its exemption in its charter.
Sec. 40, RPTC and Executive Order No. 90. Subsequently, in its
memorandum, it alleged that it is a government
instrumentality, which may not be taxed by the LGU.
 The court a quo rendered a decision holding petitioner
PPA liable for real property taxes x x x and for business taxes
with respect to petitioner’s lease of real property, but not on
petitioner’s arrastre and stevedoring services as these form
part of its government function.
On appeal, petitioner PPA contested on the taxability
of its warehouse and argued that it is part of the “port
constructed by the State”; it is a property of public dominion
(Art. 420 (1), NCC; Sec. 3 (e), PPA Charter. But this thesis (the
fact of State Ownership) was never presented at the trial,
which justified disallowance of petitioner’s new theory.
Further, no proof was adduced during the trial that the
warehouse was constructed by the State, which would qualify
the same as “Property of public dominion.”
 Therefore, the subject warehouse being owned by petitioner
itself, and not by the State, it is taxable by the respondent City of
Iloilo, Changing its theory (from Corporate ownership to State
ownership) on appeal would thus be unfair to respondent and offend
the basic rule of fair play, justice and due process; a party’s theory may
be changed on appeal when the factual bases thereof would not
require presentation of any further evidence by the adverse party in
order to properly meet the issue raised in a new theory (Ibid, citing
Lianga Lumber Co. v. Lianga Timber C., Inc. 76 SCRA 197)
Actually, the petitioner PPA in this case was raising a question
of fact, and not merely a question of law.
Whenever a question of law has been resolved on appeal and
once a decision attains its finality, whether it is erroneous or not, it
becomes the law of the case (Enriquez v. CA, 202 CRA 487)
 THE LAW OF THE CASE
The law of the case, as applied to a former decision of an
appellate court, merely expresses the practice of the courts in
refusing to reopen what has been decided. It differs from res
judicata in that the conclusiveness of the first judgment is not
dependent upon its finality. It relates (1st) entirely to question of
law and (2nd) is confined in its operation to subsequent
proceedings (3rd) in the same case (Mun. of Daet vs. C, 93 SCRA
521, Moreno, Phil Law Dictionary).
Whatever is once irrevocably established as the
controlling LEGAL RULE of decision between the same parties in
the same case continues to be the LAW OF THE CASE, whether
correct on general principles or not, so long as the facts on which
such decision was predicated continue to be the facts of the case
before the court (People v. Pinuila, 102 Phil. 999)
 Or when the court’s decision/judgment is not appealed
and allowed to become final, it becomes the law of the case and
it cannot be set aside by the judge (Masa vs. Baes, 28 SCRA 263).
In conclusion, the Hypothesis of the Case or the
Provisional Legal Theory is the tentative legal opinion of the
investigating counsel applying the rule of the law to the facts of
the case/defense; whereas, the Definite Legal Theory is generally
the permanent legal opinion of the trial lawyer applying the
rule of law to the facts of the case/defense; and while the Law of
the Case is generally the irrevocable legal opinion or ruling of
the court applying clearly and distinctly the rule of law to the
clear and distinct facts of the case is a doctrine of irrevocability
of the court’s final and executory judgment, whether correct on
general principles or not.
 The doctrine of the law of the case is a rule of practice and not
a principle of substantive law. It expresses the practice of the courts
generally to refuse to reopen what has been previously decided in the
same case, and is binding on every tribunal dealing with, except one
cloth with the power to overrule and finally declare the law to be
otherwise. It is founded on public policy, in the interest of orderly
judicial procedure, and is of special significance as applied to questions
of law as distinguished from decisions on questions of fact. (Santos vs.
Ruiz, SP-00509, 10/15/71)
A question of fact exists when the doubt or difference arises
as to the truth or falsehood of facts or when the query invites
calibration of the whole evidence considering mainly the credibility of
witnesses, the existence and relevancy of specific surrounding
circumstances, as well as their relation to each other and to the whole,
and the probability of the situation.
 A question of law exists when the doubt or controversy
concerns the correct application of law and jurisprudence to a
certain set of facts; or when the issue does not call for an
examination of probative value of the evidence presented , the
truth or falsehood of facts being admitted (Gomez vs Montalban,
G.R. No. 174414).
Commendably, it is a good policy for all trial lawyers: a) to
prove in court the same acts or omission constituting a cause of
action/accusation or defense as defined by law and as alleged in
their pleadings; b) to tackle the same factual and legal issues as
defined in the court’s pre-trial order; c) to consistently rely, in
the entire period of trial (even on appeal), the same applicable
rule of law (PPA vs. City of Iloilo), and not on two (2) unethical
rules of law (Tambong vs. People, 439 SCRA 95)
 THE RULE OF LAW AND
THE STATE OF FACTS
Law in its specific and concrete sense is a rule of conduct,
just, obligatory, and formulated by legitimate power for common
observance and benefit (F.B. Moreno, Phil. Law Dictionary, 2nd
Ed.)
The term ‘laws’ in Article 13 of the New Civil Code is used
in a generic sense to include the Rules of court which now
constitute the adjective laws of the Philippines (Ng v. Republic,
57306-R, March 30, 1977).
Law is the rule of reason applied to existing conditions by
the court in rendering its Judgment, or issuing final order.
For instance, the court’s reason or judgment in holding
the issuer of a bouncing check criminally and civilly liable is Sec.
1 of B.P. 22, which forms part of the law of our land (Art. 8. NCC)
 The rule of law, as exemplified in the time-honored
principle of dura lex sed lex – that the law may be harsh,
but that is the law, and ignorance of the law excuses no
one from compliance therewith (Art. 3, NCC), must be
applied strictly to a clear and distinct state of facts of a
particular case and with “justice for that is our mission
and the scheme of our Republic” (Alonso vs. IAC, 150
SCRA 259; Art. 10, NCC)
In the absence of the applicable rule of law to the
state of facts as the action has prescribed, there is no
more reason for the accused/defendant to be held
criminally or civilly liable to the public or private
complainant.
 Thus after the repeal of the Anti-Squatting Law (P.D. No.
772) on October 27, 1997 by the Anti-Squatting Law Repeal Act
(R.A. No. 8368), no person can be charged and/or be held
criminally liable under the said law (Sec. 4, R.R. No. 8368; Sec. 27,
R.A. No. 7279).
R.A. No. 9344 amending Art. 12 (2) of the Revised Penal
Code on March 22, 2006, a child fifteen (15) years of age or under
at the time of the commission od the offense shall be exempt from
criminal liability.
After the abolition of the Act Designating Death by Lethal
Injection (R.A. No. 8177) and the Death penalty Law (R.A. No.
7659), as well as the related laws, decrees and orders, by R.A.
No.9346, approved on June 24, 2006 and effective on July 25, 2006,
no death penalty shall be imposed upon the accused who may be
convicted of any heinous crime.
 So when the rule of law or “the reason for the law ceases, the law
itself ceases”.
In gist, if a defense is based on law, the Defendant or Defense’
Definite Legal Theory equals the Facts minus the Rule of Law.
But, if a defense is based on facts, the Defense or Defendant’s
Definite Legal Theory equals the Rule of Law minus the Facts. In this
instance, the parties’ definite legal theories involve purely on question of
fact, the finding of which must be:
(a) clearly and distinctly stated in a judgment (Sec. 1, Rule 36,
RRC);
(b) clearly and distinctly proved in court (Sec. 1. Rule 128);
(c) clearly, distinctly and formally offered in evidence (Sec. 34,
Rule 132);
(d) clearly and substantially in both parties’ pleadings, known as
the ultimate facts (Sec. 1, Rule 8)
 THE ULTIMATE FACTS
Ultimate facts as defined are the facts on which the
party relies for his claim or defense (Sec. 1, Rule 8, RRC). It is
also known as the factum probandum, or facts to be proved
by the factum probans (evidentiary facts) (De Gala v. De Gala,
42 Phil. 733).
Deduced from the following legal phrases: material
averment made in the complaint” (Sec. 10 & 11, Rule 8, RRC):
and, “material facts alleged in the information” (U.S. v.
Borlado, 42 Phil. 72), actually the ultimate facts (Sec. 1, Rule
8) are also the material facts.
Verily, material allegations of fact are those that
without which the plaintiff would have no cause of action (La
Corporation de Padres Agustinos Recoletos v. Crisostomo(32
Phil. 429)
 Moreover, a fact is essential if it cannot be stricken out
without leaving the statement of a cause of action insufficient
(Remitere v. Yulo, 132 Phil. 62). Certainly, the essential facts are the
key facts (Sayco v. People, G.R. No. 159703, 3/3/08, Phil. Law Report,
pp4-5),
In sum, a statement of a cause of action or accusation in a civil
or criminal complaint is sufficient if all of the essential, key, material or
ultimate facts are present or alleged therein.
Like for example in a complaint for forcible entry, the
essential/key/material or ultimate facts would state – “that the
plaintiff had prior physical possession but he was unlawfully deprived
thereof by the defendant through force, intimidation, threat, strategy
or stealth, and within one year from the said deprivation brought an
action in the proper MTC “(Sec. 1, Rule 70, RRC)
 A cause of accusation in a criminal action is sufficient if all of
key/essential/material ultimate facts, are present. If it lacks one element, the
complaint or information is dismissible, or down-gradable, for failure to
charge the proper offense (Sec. 3(a), Rule 117; &Sec. 14, Rule 110).
In charges of illegal possession of firearm, it is the duty of the
prosecution to prove that the firearm is illegal, that is, to present a witness
from the firearm and explosive unit (FEU) of the PNP to show that the firearm
in possession has not been licensed to any person, particularly , the accused
(Rene Botana v. CA and People, G.R. No. 120650, Feb. 21, 2003; PP v.
Dorimon, 321 SCRA 43 (1999) The absence of license to possess firearm (the
essential/key/material/ultimate fact), or for failure of the prosecution to
prove the negative element of a cause of accusation, this criminal action is
dismissible for lack of cause of accusation, or for insufficiency of evidence
(Sec. 23, Rule 119) (Note: OCA Cir. No. 1-2011, Jan. 18, 2011, admits a
Certification from FED as sufficient evidence)
 THE PROVING EVIDENTIARY FACTS
These facts are the factum probans, the proving facts elicited for
the purpose of proving or evincing the essential, key, material or ultimate
facts in a pleading (Sec. 1, Rule 8), by the party’s counsel having the
burden of proof.
The Burden of Proof on ULTIMATE FACTS and
The Burden of Evidence on EVIDENTIARY FACTS
Burden of proof is the duty of a party to present evidence on the
facts in issue necessary to establish his claim or defense by the amount of
evidence required by law (Sec. 1, Rule 131)
In civil cases, the burden of proof may be on either side. It is on
the latter, if in the answer one alleges an affirmative defense, which is not
a denial of essential ingredients in the plaintiff’s cause of action, but is
one which, if established, will be a good defense – i.e., an avoidance of a
claim, which prima facie, the plaintiff already has because of the
defendant’s own admission in the pleadings (Sambar vs. Strauss, 378 SCRA
364 (2002)
 In criminal cases, the burden of proof is on
the prosecution to prove beyond reasonable doubt
the guilt of the accused (PP vs. Abujan, G.R. No.
140870, 2/11/04)
However, once the accused has admitted that
he killed the victim, the burden is on him to
establish the presence of any circumstance which
may relieve him from responsibility or mitigate the
offense committed (Boholst-Caballero, 61 SCRA
180)
 The burden of evidence is the duty of the
defendant/defense to present evidence to controvert,
impeach or disprove the proving facts of the
plaintiff/prosecution. Likewise, the burden of evidence is on
the plaintiff/prosecution to present evidence to rebut the
controverting or impeaching facts of the defendant/defense,
and ultimately to rehabilitate its proving facts on the ultimate
facts (affirmative allegations) upon which its claim is based.
Further, the burden of evidence is also on the
defendant/defense to present evidence to sur-rebut the
plaintiff/prosecution’s rehabilitating facts, and ultimately to
rehabilitate its controverting/impeaching facts, as well as, its
own proving facts on the ultimate facts (affirmative and
negative defenses) upon which its defense is based.
 Practically, the burden of evidence is a
duty to present evidence on the evidentiary
facts in issue. It shifts from one party to the
other as the order of trial progresses. While the
burden of proof is a duty to present evidence on
the ultimate facts in issue. It remains on one
side right from the initial presentation of
evidence until the trial (regular or in its reverse
order) terminates.
 THE EFFECT OF NO PROVING
EVIDENTIARY FACTS
After the plaintiff/prosecution has rested its
case, the defendant/accused may move for the
dismissal of a case on the ground that upon the facts
and the law, the plaintiff has shown no right to relief
(Sec. 1, Rule 33), or on the ground of insufficiency of
evidence (Sec. 23 Rule 119).
Even after the presentation of defendant’s
evidence, a civil/criminal complaint may be
dismissed also for lack of cause of action/accusation;
for insufficiency of evidence; or when its ultimate
facts are insufficiently supported by the proving
evidentiary facts on records.
 THE CONTROVERTING
EVIDENTIARY FACTS
These controverting facts are the adverse party’s evidentiary
facts elicited from, or declared by, the accused/defendant, or one’s
witnesses’ judicial affidavit (written direct testimony) conducted ex-
parte by the defendant’s counsel at his law office.
Having the burden of evidence to controvert the
prosecution/plaintiff’s evidentiary facts, a counsel may prepare the
judicial affidavits of his witnesses asseverating all the legal and factual
defenses, describing and authenticating therein his corroborating
exhibits.
One controverting evidentiary fact in a case is the
misidentification of a party or person by a witness (PP v. Limpangog,
G.R. No. 14153, Feb. 2, 2003)
The accused’s legal theory in this case is: the Party’s Definite
Legal Theory equals the Rule of Law plus the Ultimate Facts minus the
Accused/Defendant’s Identity, (PDLT = RL + UF – A/DI).
 THE CHANNELS OF
EVIDENTIARY FACTS
These channels of evidentiary facts (witness
personal circumstances) may be classified into six
(6) types.
The first type comprises the witness’ legal
circumstances: the name, AGE, gender, citizenship,
religion, dialect, CIVIL STATUS, OCCUPATION and
residence. The words in bold letters are
determinative of witness’ disqualifications to testify
by reasons of mental immaturity, marriage, and
privileged communications (Secs. 21(b), 22 & 24
(a,b,c,d, & e), Rule 130)
 The second type consists of the witness’ spatial or
temporal circumstances: his whereabouts, location and relative
positions at the place and time in relation to the alleged
incidents, to the things around and to the persons allegedly
present thereat. These are determinative of witness’
opportunity of viewing or knowing the acts or omissions
complained of (Sec. 1, Rule 133).
The third type includes the witness’ sensual
circumstances or sensory perceptions: eyes for sight; ears for
hearing; nose for smell; tongue for taste; and skin for touch.
These are determinative of the percipient-witness’ competency
to perceive and to convey his perception of the acts or omissions
complained of and other existing conditions of a case or a state
of facts to the court. (Sec. 20, Rule 130; ESP is not legally and
judicially recognized).
 The fourth type covers the witness’ technical
circumstances, such as: special knowledge, skill,
experience or training on a matter in issue. These facts
are determinative of witness’ expertise in giving technical
opinion (Sec. 49, Rule 130).
The fifth type embraces the witness’ incidental
circumstances, to wit: familiarity or acquaintances of the
identity, handwriting and mental sanity of a person,
including the witness’ impressions of the emotion,
behavior, condition or appearance of a person. These
circumstances are determinative of witness’ ordinary/lay
opinion (Sec. 50, Rule 130).
 `
The sixth type embraces the witness’ relational
circumstances or relations with the parties, other
witnesses or persons involved in a case, by reason of
Marital, Filial, Contractual, Social and Political affinity.
Affinity means tendency, inclination, partiality, bias,
liking, preference, propensity, proclivity, sympathy,
predisposition, penchant, susceptibility, hankering,
appetite; Ant., antipathy, hostility, dislike, disinclination.
All these lead to the witness’ interest or want of interest
in the result of a case (Sec. 1, Rule 133) But relationship
by itself does not give rise to any presumption of bias or
ulterior motive (PP v. Montemayor, 404 SCRA 228).
 The above-mentioned channels of evidentiary
facts may practically be the court’s bases: a) in applying
the TOTALITY CIRCUMSTANCES TEST; b) in looking into
human fallibilities and suggestive influences (Limpangog
case); c) in determining the preponderance or
equilibrium of the parties’ evidence in civil cases (Sec. 1,
Rule 133); and d) in finding the innocence, or guilt of the
accused by a proof beyond reasonable doubt (Sec. 2,
Rule 133).
Nevertheless, the same personal existing
conditions may be used to impeach a witness of the
adverse party. Those may be referred to as the
impeaching evidentiary facts.
THE IMPEACHING EVIDENTIARY FACTS
The impeaching evidentiary facts can be elicited from
the adverse witness (or the party’s witness referred to in pars.
d & e of Sec. 10, Rule 132) under cross-examination by the
counsel having the burden of evidence to destroy the
credibility of such witness.
The credibility of an adverse witness may be destroyed
in three (3) ways: a) by contradictory evidence; b) by
evidence of bad reputation or character; and c) by
inconsistent testimonial evidence (Sec. 12, Rule 132).
Whether such witness is called by the party, or by the
other party, the witness’ credibility may be elicited by asking
first of his whereabouts or his opportunity of viewing the
alleged incident.
 For instance, the accused/defendant’s alibi given
during the direct examination that he was at the other
place when the crime was allegedly committed, could be
contradicted by his admission during the cross-
examination that he was residing or staying not so far
away from the crime scene.
As follow-up to a question on whereabouts, the
witness may be asked about his relative position or
specific distance from the crime scene. He may be asked
also on the spatial or temporal conditions with respect to
the facts in a particular case.
 In one case the Supreme Court held for alibi to prevail,
the accused must establish by clear and positive evidence that
it was physically impossible for him to have been at the scene
of the crime when it happened, not merely that he was
somewhere else. (PP vs. Canoy, Hermenio, G.R. Nos. 148139-
43, Oct. 23, 2003).
Moreover, because of the adverse witness’
contractual, social, or personal relations, transactions with the
party, with the other witnesses or persons relative to the case on trial
(determinative of human fallibilities and suggestive influences), the
admission made by the adverse witness in such transactions may be
utilized by the cross –examiner to confront said witness against any of
the inconsistent admissions made by him during the cross-examination.
 The admission of a witness on cross-examination may
be contradicted by his own admissions given: 1) the direct
examination; 2) the pre-trial conference; 3) the
confrontation at the police station; 4) the conciliation before
the office of barangay pangkat; 5) the mediation before the
office of the barangay chairman or 6) any extra-judicial or
previous admissions with respect to the relevant facts in
issue (Sec. 26, Rule 130)
Witness’ admission of his previous conviction, as for
example of the crime of falsification on cross-examination,
may be used to prove that the witness’ general reputation for
truth, honesty, or integrity is bad (Sec. 11, Rule 132). This
would then suggest that the credibility of the witness is low.
 When the witness’ credibility has been
successfully destroyed, and/or the party’s
evidentiary facts have been duly controverted,
the party who has the burden of proof or duty
to prove the ultimate facts, has also the burden
of evidence to present rebuttal evidence by
eliciting from the party’s witness some
evidentiary facts as his rehabilitating facts.
 THE REHABILITATING
EVIDENTIARY FACTS
These rehabilitating evidentiary facts may be elicited
by the examiner-proponent during the re-direct examination
affecting the witness’ sensory perceptions at the time of the
cross-examination and how did he comprehend the eliciting
questions of the cross-examiner.
Or, the party’s witness may be asked the same
conditions of his perceptions at the time of the direct
examination and how did he comprehend the direct eliciting
questions of the examiner-proponent.
Or, the party’s witness may be asked about his relative
position or location when the alleged admissions transpired at
the office of the police station, barangay pangkat, barangay
chairman, etc.
 These rehabilitating evidentiary facts may be elicited from a
party’s witness during the re-direct examination or re-cross-
examination by the counsel having the BURDEN OF EVIDENCE of
rebutting against the adverse party’s controverting and/or impeaching
facts, purposely to rehabilitate his witness’ credibility, or to
rehabilitate the credibility of one’s evidentiary fact itself (PP vs.
Patano, G,R, No. 129306, March 14, 2003.
These rehabilitating facts may also be elicited directly from the
party’s rebuttal or sur-rebuttal witness, whose personal circumstances
(legal/special circumstances, whereabouts, sensory perceptions) are
more accurate or reliable than those of the previous witness’
personal existing conditions, purposely to rehabilitate his proving or
controverting evidentiary facts.
In practice, some of the witness’ personal circumstance of the
first type – the legal circumstances – can be utilized as the channels of
qualifying facts.
 THE QUALIFYING FACTS
The qualifying facts include legal circumstances of the
witness – name, age, civil status, and OCCUPTION, which
must be asked first by the court’s interpreter before the
counsel-proponent may orally offer the witness’ judicial
affidavit in evidence.
Without these qualifying facts, the oral offer of
witness’ testimony maybe objected to by the adverse counsel
on three (3) general grounds: 1) that the witness is
incompetent; 2) that the oral offer is improper; and 3) that the
purpose or purposes of the offer are irrelevant.
Or, the same oral offer of witness’ testimony maybe
objected to on some specific grounds – a) that the witness has
not been qualified to testify; b) that the offer is misleading; c)
it lacks the foundation; or d) that it has no basis, etc.
 THE RESUME: CATEGORIES OF
A STATE OF FACTS
As to the rule on pleading, the state of facts of a case is
of two general categories: the ultimate facts (factum
probandum) and the evidentiary facts (factum probans) (Sec.
1, Rule 8).
As to the counsel’s burden/duty and purpose of
presentation of evidence, the state of facts of case is of six
distinct categories:
1) Ultimate Facts – These are the acts or omissions
alleged in a pleading. Which must be proved by the party
having the burden of proof, or duty or purpose of
establishing his claim or defenses (Sec. 1, Rule 8; Sec. 1, Rule
131)
 2) Proving Facts – These are evidentiary facts or
statements of fact omitted in a pleading which must be
elicited from the party’s witness by the counsel having
the burden of proof, or duty or purpose of proving the
ultimate facts in issue.
3) Controverting Facts – These are the evidentiary
facts which must be elicited from the party’s witness by
the counsel having the duty, burden of evidence, or
purpose of controverting the evidentiary facts given by
the testimony or exhibits of the adverse party (Sec. 1,
Rule 8;Sec. 1, Rule 131).
 4) Impeaching Facts – These are the evidentiary
facts which must be elicited from the adverse/hostile
witness by the counsel having the burden of evidence or
duty, or purpose of destroying the adverse or hostile
witness’ credibility (Sec. 11, 12, 13, Rule 132).
5) Rehabilitating Facts – These are the evidentiary
facts which must be elicited from the party’s witness by
the counsel having the burden of evidence or duty or
purpose of rebutting the controverting and/or the
impeaching facts of the adverse party (Sec. 1, Rule 8; Sec.
1, Rule 131).
 6) Qualifying Facts – These are the evidentiary
facts (witness’ personal legal circumstances) usually asked
by the court’s interpreter or by counsels for the purpose
of qualifying the party’s witness before the latter can
answer to the counsel’s eliciting questions (Sec. 21, 22, &
25, Rule 130).
Recalling some of the categories of facts may be
troublesome, so it may be wise for a counsel to adopt a
list as a guide to the facts he ought to recall during the
trial. This is the party’s written trial guide.
 THE PARTY’S WRITTEN
TRIAL GUIDE
A written Trial Guide may be adopted by the counsel
after the court has issued a pre-trial order incorporating the
action taken during the preliminary conference before the
clerk of court and at the pre-trial proper, the evidence
marked, the stipulation of facts or of testimony, the
amendments of pleadings, the proposals for settlement, and
the definition of issues for trial, which shall control the
subsequent course Rule118; A.M. No. 03-1-9-SC).
These written trial guide, trial plan, trial brief,
evaluation sheet or check list for the new lawyers is a simple,
clean and distinct listing of their:
1) Ultimate facts admitted in the pleadings and
stipulated at the preliminary and/or pre-trial conference;
 2) Evidentiary facts admitted at the preliminary or pre-
trial conference (stipulations of facts), and/or stipulations of
the testimony (nature or tenor), not necessarily the truth
thereof;
3) Exhibits marked, their nature and their purposes;
4) Exhibits admitted as to the existence, and/of
authenticity;
5) Factual and legal issues;
6) Witnesses, the names, the nature of their
testimonies on facts in issue, their legal or qualifying
circumstances, whereabouts, sensory perceptions, relations
with the parties other witnesses persons, documents, objects
place time, including other circumstances of the case;
 7) Probable qualifying, proving, controverting,
impeaching, or rehabilitating facts;
8) Researches on laws, rules and jurisprudence, including
the principle in arts, sciences and trades, determinative or
decisive of the factual and/or legal issues.
Equipped with his written trial guide, which is consistent
with the court’s pre-trial order the trial lawyer may be guided in
determining: a) whether he should concentrate only on the
proving, controverting, impeaching, or rehabilitating evidentiary
facts; b) what or when should he propound a particular
question; c) when to end his eliciting questions; d) whether he
should still conduct the direct or re-direct examination, do the
cross or re-cross examination; and e) whether the desired facts
are already supplied by the adverse counsel.
 In obtaining a clear focus of the desired
facts of the case or defense under (not outside)
a party’s definite legal theory (PDLT=Rule of Law
plus or minus Facts), the examining counsel
may construct an imaginary structure of such
legal theory and may adopt the party’s visual
trial plan or guide.
 THE PARTY’S VISUAL TRIAL GUIDE
A Visual Trial Guide may take any structural form.
It may appear like a chain of facts firmly connecting to
each other from end to end. Or it may look like a
pyramid of cubes supporting the one on its apex.
Appropriately, the visual structure of a party’s definite
legal theory may resemble like the skeleton of a typical
Filipino house with its strong posts: standing on solid or
valid ground(s); sustaining the girders, floor joists, studs,
braces, ceiling joists; and ultimately supporting the
beams and trusses at the top.
The visual structure used by the counsel in
formulating the party’s provisional theory of the case may
be the same visual structure to be used:
1st in adopting the party’s definite legal theory in his
pleading; 2nd in recommending the client’s appropriate
plea upon arraignment; 3rd in entering into a compromise
agreement on the civil aspect, in making admission or
stipulation of facts, in marking of exhibits, and in
proposing factual or legal issues during the preliminary or
pre-trial conference; 4th in offering of oral/written
testimony of a witness; 5th in conducting the examination
of a witness; 6th in formally offering of exhibits; 7th in
presenting oral argument, position paper or
memorandum; 8th in pursuing or defending a case on
appeal; and rarely, 9th in enforcing or staying a writ of
execution of judgment in a case.
 THE QUALITY OF EXAMINER’S
QUESTION
These questions doubtlessly depend upon the examiner’s
manner or efficiency of following up his visual or written trial
plan. There would be no problem during trial if the counsel
follows the trial guide. More importantly, he must know the
weakness of his witness, what to watch out for, as he conducts
the examination and what important points to bring out.
Whatever question asked, and words used during the briefing in
the office, must be the same question and word to be asked in
the courtroom during trial.
1. Don’t change your language. Don’t change the
wordings of your question from the office interview to the court.
2. Don’t ever ask of your own witness about any exhibit
that you have not discussed with him in your office.
 3. If your witness is going to identify your exhibit, then you explain
to your witness all these big words that you have to go through in court to
identify an exhibit.
Q: Do you recognize this document?”
A: Yes Sir.
Q: Why do you recognize this document?
A: Because it is the letter I received from the defendant.
Q: Do you recognize this signature?
A: Yes, Sir.
Q: Whose signature is this?
A: The signature of the defendant.
Q: Why do you recognize this signature?
A: I have seen it very often.
 Fortunately, with the use of judicial affidavit, the
proponent-examining counsel can freely build up the party’s
theory of the case, that is, without interruption from the
annoying objections of the adverse counsel, or from the court’s
damaging questions.
On cross-examination, the examiner must definitely
know that the answer of the witness be categorically YES or NO;
and that a witness’ admission would be the desired missing or
connecting link to complete the structure of his client’s definite
legal theory.
The examiner must not permit a witness to explain a
matter of fact, unless he is sure that the probable explanation
would be the one already in his mind. He must not ask
questions calling for alternative answer, neither propound
questions for the sake of asking.
 THE LEGAL OBJECTIONS
1. As to offer of oral testimony, the Rules of Court states:
Objection. – Objection to evidence offered orally must be
made immediately after the offer is made. Objection to a
question propounded in the course of the oral examination of
a witness shall be made as soon as the ground therefor shall
become reasonably apparent (Sec. 36, Rule 132, RRC).
Striking out answer. – Should a witness answer the question
before the adverse party has the opportunity to voice fully its
objection to the same, and such objection is found to be
meritorious, the court shall sustain the objection and order the
answer to be stricken off the record. On proper motion, the
court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper Sec. 39, Rule
132).
2. As to offer of testimony in judicial affidavit, The Judicial
Affidavit Rule provides that:
The party presenting the judicial affidavit of his witness
in place of direct testimony shall state the purpose of such
testimony at the start of the presentation of the witness. The
adverse party may move to disqualify the witness or to strike
out his affidavit or any answer found in it on the ground of
inadmissibility. The court shall promptly rule on the motion
and, if granted, shall cause the marking of any excluded
answer by placing it in brackets under the initials of an
authorized court personnel, without prejudice to a tender of
excluded evidence under Section 40 of Rule 132 of the Rules
of Court. (Sec. 6, A.M. No. 12-8-8- SC, Sept. 4, 2012).
3. As to offer of exhibit in a judicial affidavit that is immediately
admitted by the court.
Facts: After presenting the witness’ judicial affidavit, the party
orally offers his exhibit. Over the adverse party’s objection to its
admission, the court immediately rules and admits respecting that
exhibit.
Question: May the adverse party object to the inadmissibility
of such exhibit on the ground of impropriety? At what instance, if any?
Answer: Yes, as when the court inadvertently admits an
exhibit that is not pre-identified, neither pre-marked, nor pre-
authenticated by the witness in his judicial affidavit itself (Preclusion
Rules); or when the court erroneously admits an exhibit prematurely
offered by a party, although he has still witnesses to be presented.
THE KINDS OF RELEVANT EVIDENCE
A relevant evidence is either: MATERIAL
when it directly proves a fact in issue; or
COLLATERAL when it merely tends to establish the
probability or improbability of a fact in issue (Sec.
4, Rule 128); or CIRCUMSTANTIAL when it
indirectly and sufficiently proves the guilt of the
accused beyond reasonable doubt (Sec. 4, Rule
133); or SUBSTANTIAL, that amount of relevant
evidence which a reasonable mind might accept as
adequate to justify a conclusion in cases filed
before the administrative/quasi-judicial bodies (Sec.
5, Rule 133)
 THE CREDIBILITY OF ADMISSIBLE
EVIDENCE
The evidence may be admissible but it
may not be always credible because
admissibility of evidence defends upon its
competency, relevancy, and propriety, while
credibility refers to the trustworthiness or
truthfulness of a witness, or to the weight and
sufficiency of the evidence given to it by the
court or tribunal adopting the totality
circumstances test (Rule 133; PP v. Arapok, 347
SCRA 479).
 THE CONFORMITY OF THE PROVEN
ULTIMATE FACTS WITH THE
LEGESLATIVE FACTS
First, whether all the duly proven ultimate facts are
sufficient or insufficient to conform with all the legislative facts –
the acts or omissions determined by the legislative body, or the
facts defined by law, statute or ordinance, constituting a
particular cause of action or accusation.
Second, whether the statute/ordinance determining or
establishing the legislative facts has tied or got to be with, his
client.
Third, whether such legislative facts (defining a specific
rule of law for a particular cause of action of accusation) have
been modified, repealed, or declared void at the time of the
commencement of an action.
 THE LAWYER’S BASIC FUNCTION
AND TASKS
The basic function of a trial lawyer is to win the case in
ways sanctioned by law. By winning a case means obtaining a
favorable judgment so that if his clients have suffered any
harm or injury, they may recover. And that if his clients have
caused harm or injury, they may not pay more than the law
requires.
Concomitantly, it has been recognized that the
prosecuting officer is the representative not of ordinary party
to a controversy but of a sovereignty whose obligation to
govern impartiality is as compelling as its obligation to govern
at all; and whose interest, therefore in a criminal prosecution
is not that one will win a case but that justice shall be done.
(Rule 6.01, Code of Professional Conduct)
 To translate this function into a concrete task, the job of a trial
lawyer can be broken up into:
First, he must be able to offer the admissible evidence, and must do so
in right order and at the right time for maximum persuasive effect. He
must prove the theory of the case or defense, and must prove that it is
inherently right for the judge to decide the case in his client’s favor. He
must see that this is done by effective direct examination and proper
introduction of exhibits.
Second, he must the best to exclude the admissible evidence of the
opponent, by objections and motions to strike out
Third, he must make way to expose the weakness of the opponent’s
case by having an effective cross-examination, by impeachment and
rebuttal. He must also strengthen or rehabilitate any part of the
party’s theory of the case/defense that the opponent has succeeded in
weakening through re-direct examination and corroborating evidence.
Fourth, he must preserve the record so that if the trial judge excludes
the admissible evidence, he can make an approximate offer of proof or
tender of excluded evidence (Sec. 40, Rule 132).
At the end of the trial, the lawyer must depict the stance of
the evidence and law into strongest and most persuasive picture of the
theory of the case or defense through a written memorandum, or
position paper setting forth the law and the facts relied upon by him.
The special tasks of a lawyer, which must always be borne in
mind are: (1) conduct effective direct examination and present
exhibits; (2) make objections and motions to strike out; (3) cross-
examine, impeach (or controvert) and rebut; (4) redirect and
corroborate (or rehabilitate); (5) make offer of proofs; and (6) submit
persuasive memorandum (position paper).
 THE LAWYER’S PERSUASIVE
PERSONALITY
Among the many factors which allows one to earn
the respect is to see to it that (1) the judge recognizes you
as a clean fighter; (2) the judge respects your ability as a
lawyer, not only your knowledge of the law but your
judgment as well; (3) more importantly, the judge sees
you as a man of integrity.
To b e as such is indubitably not easy. In the words
of Atty. Amelito R. Mutuc, “The qualities of being a
persuasive lawyer are earned through sheer patience,
conscientious and persevering toil and hard work”.
 THE LAWYER’S OTHER TASKS
The most important skill found most lacking, especially among
young members of the bar, is the ability to listen to what is being said
and to understand. Everyone has the natural tendency to hear what
we want to hear. When someone says something, we generally try to
interpret it according to preconceived notions. Trial lawyers cannot
afford that luxury while they are in court. They must hear what is being
said and understand what is being said not only by the witness but by
the judge and by the adverse party’s counsel.
The second skill that a trial lawyer must have is the skill to
speak clearly, distinctly and understandably and, if possible, briefly.
The third skill that a trial lawyer must have is, he must be able
to think, and makes decision quickly. Be always ready for surprises.
Unless he can think quickly, the result of his ability to cope with
surprise factor will affect for at least the rest of that session and that
can harm his client’s case.
 The fourth skill that a trial lawyer must have is the
patience to read every document. This is one of the pieces of
advice from the famous Roman-Spanish lawyer Quintilla who
wrote a book on trial practice.
In addition to the above-mentioned skills, a trial lawyer
must also have : patience to scrutinize the intrinsic or extrinsic
nature of every object to be exhibited to the court; vigilance to
watch every object or real exhibit closely to avoid replacement,
misplacement, or loss thereof; and wisdom when it is necessary
to present a particular object, real, physical or demonstrative
exhibits to the court, or whether to formally some or all the
exhibits in evidence, or whether to reserve in the rebuttal or sur-
rebuttal evidence.
 THE JUDGE’S PREDILECTION
AND IDIOSYNCRASIES
One of the most important things that a trial lawyer must
bear in mind is that he ought to convince the person who is
sitting on the bench. As a lawyer, one is bound to agree with the
judge. The lawyer may not like the judge as a person, he may
think the judge does not know the law, he may think the judge is
stupid, he has to set aside his biases because at the end of the
day, it will be the judge who will decide the case. Whether the
lawyer likes the judge or not, the latter is the person whom the
former has to persuade to win the case, not the Supreme Court,
neither the Court of Appeals.
In order to win a case, a lawyer would need three things:
First, he must have a good case where the law favors his client;
Second, he must have credible evidence and witness and must
know how to present his case to the judge; and Third, there
must be a good judge who is willing to do justice and renders
judgment judiciously. The first two a lawyer can guarantee, but
not the third one because it is already beyond his control.
 THE INDETERMINACY OF LAW THESIS
The strong indeterminacy thesis claims that in every possible case,
any possible outcome is legally correct. Or, in a more extended way, the
strong indeterminate thesis says: “In a set of facts about actions and events
that could be processed as a legal case, any possible outcome – consisting of
a decision, order, and opinion – well be legally correct. Knowing the judge is
more important than knowing the precedents.
The severe implication of the legal indeterminacy thesis may be
mitigated by our knowledge that: a) our courts of law are also courts of
equity; and b) the rule of law is actually a rule of reason, not by a rule of law
imposed by the dominant class, past or present, as a substitute of naked force.
Therefore, we must apply to the facts of a case, not the
indeterminate letter of the law, but the determinate right and justice
intended therein by our lawmaking body (Art. 10, NCC).
The laws have nothing to do with how cases come out. They are just
window dressing that skillful lawyers and judges can manipulate any decision
they please.
 THE LAW STUDENT PRACTICE RULE
A law student who has successfully completed his 3rd
year of the regular four-year prescribed law curriculum and is
enrolled in a recognized law school’s clinical legal education
program approved by the Supreme Court, may appear without
compensation in any civil, criminal or administrative case before
any trial court, tribunal, board or office, to represent indigent
clients accepted by the legal clinic of the law school (Sec. 1, Rule
138-A).
The appearance of the law student authorized by this
Rule shall be under the direct supervision and control of a
member of the Integrated Bar of the Philippines duly accredited
by the law school. Any and all pleadings, motions, briefs,
memoranda and other papers to be filed, must be signed by the
supervising attorney for and in behalf of the legal clinic (Sec. 2)
 The rules safeguarding privileged
communications between attorney and client shall
apply to similar communications made to, or
received by the law student, acting for the legal
clinic (Sec. 3).
The law student shall comply with the standard
of professional conduct governing members of the
Bar. Failure of an attorney to provide adequate
supervision of student practice may be a ground for
disciplinary action (Sec. 4).
 ON-THE-JOB TRAINING (OJT)
In accordance with the Office Order No.
37, Series of 2007, the law student may sign a
legal agreement to work for specific amount of
time as apprentice at any of the Public
Attorney’s Office in return for instruction in a
trade, art, business or practice of law. Then he
may observe on what and how the PAO lawyers
are doing their tasks.
 THE LAWYER’S OFFICE ACTIVITIES
1. Counseling on client’s claim/defense, gathering
and categorizing the state of facts of a case or defense
through the initial examination of witnesses’ personal
circumstances, and ascertaining the truth thereof
according to the rules on admissibility or inadmissibility,
and credibility of evidence.
2. Reviewing the law relied on by the party,
threshing out its excepting and exclusive clauses, and
construing the legislative intents (right & justice) from its
legislative facts – the acts/omissions constituting a cause
of action/accusation/defense
 3. Formulating the client’s provisional legal theory
(CPLT).
4. Identifying and/or authenticating the private or
public documentary exhibits (PDE).
5. Evaluating the corroborative and/or cumulative
object, real or demonstrative exhibits (O/R/DE).
6. Drafting of judicial affidavits (JA)
depositions/answers to written interrogatories or answers to
written requests for admission, and other competent
documents.
7. Researching some pertinent principle in science,
arts and trade determinative of the possible factual issues.
 8. Analyzing other related laws, rules, principles, and
jurisprudence decisive of the probable legal issues.
9. Adopting and initially introducing the party’s
definite legal theory (PDLT) in a complaint/answer or pleading.
10. Verifying the harmony of the caption, allegation of
facts, and prayer in a pleading and/or subsequent pleadings.
11. Ascertaining the possible legal grounds of a
motion to dismiss the complaint or to quash the information,
or other probable legal objection thereto, in its form and
substance, before filing the same in court.
12. Taking the judicial affidavit of witnesses pursuant
to Sec. 3 of the Judicial Affidavit Rule.
 13. Preparing a pre-trial brief for his client
pursuant to Sec. 6, Rule 18 of the Revised Rules
of Court.
14. Complying or executing other papers
and matters as may be directed by the Court’s
Pre-con/Pre-trial Order; and
15. Making a checklist or formulating a
trial technique/trial guide/trial plan or trial brief
 THE TYPICAL EXERCISES OF
INTRODUCING A PARTY’S DEFINITE
INTRODUCTION:
LEGAL THEORY
The introduction of the Party’s Definite Legal Theory (PDLT) is
usually done by the trial lawyer in he following manner:
1. In his initiatory or subsequent pleadings;
2. At the arraignment and plea;
3. During the preliminary conference before the branch clerk of
court, at court’s option, and/or during the preliminary/pre-trial conference
proper;
4. During the oral offer of witness’ testimony on the
ultimate/evidentiary facts in issue;
5. At any order of examination of witnesses;
6. In his formal offer of documentary or object exhibits, duly
admitted, identified and/or authenticated;
7. In his oral argument, position paper or memorandum stating
clearly and distinctly the facts and the law relied upon, and ultimately
convincing the court of his definite legal theory.
 Incidentally, the party’s definite legal
theory may also be introduced in part at the
reception of evidence on motion (Sec. 7, Rule
133), or partly during the tender of excluded
evidence (Sec. 40, Rule 132) which may be
considered on appeal.
Even on appeal, the 8th instance, the same
definite legal theory must be introduced by the
party (PPA vs. City of Iloilo).
 It is a matter of law that when a party adopts a
particular theory in the court below: (1) he will not be
permitted to change the theory on appeal (Noe vs. People,
G.R. No. 158057, 9/24/04); (2) neither will he be allowed to
invoke two defenses at the same time – self-defense under
Art. 11 par. 1, RPC, and accident under Art. 12, par. 4, RPC –
because said defenses are intrinsically antithetical* or there is
no such defense as accidental self-defense in the realm of
criminal law; (3) nor will he be tolerated to assert a defense
of alibi together with a defense of one’s right to real property
(PP vs. Besere, MCTC, Tubay-Santiago, Agusan del Norte, Crim.
Case No. 2707, Dec. 28, 2005).

(*the exact opposite; contradictory)

 In a forcible entry case, the allegation of
force, intimidation, strategy, threat or stealth, is
antithetical to plaintiff’s admission that the case
is a matter of boundary dispute, as the decision
thereon should be based on the result of the
relocation survey to be conducted by a surveyor
(Junio vs. Judge Mananzan, Adm. Matter No. 68-
MJ, Feb. 25, 1975)
 ARRAIGNMENT AND PLEA
COURT Call the case.
INTERPRETER (Reading the case) For arraignment
Crim. Case No. 12345, PP vs. Juan
dela Cruz for Homicide.
COURT Appearances.
PUB. PROS. For the State/People/Government,
Your Honor .
PVT. PROS. Atty. Pedro dela Cruz, Your Honor,
respectfully entering my
appearance as private prosecutor
under the control and direction of the
public prosecutor.
DEF. COUNSEL: Atty. Pablo dela Cruz,
respectfully appearing for the
accused, Your Honor. The
accused is present and he is
ready for arraignment, Your
Honor.
COURT Arraign the accused.
INTERPRETER (Reading the information to the
accused in a language/dialect he
understands, and asking his plea)
 THE PRELIMINARY CONFERENCE
The preliminary conference may be referred to
the Branch Clerk of Court, if warranted. The conference
shall be set at least three days prior to the pre-trial to
discuss on plea bargaining, amicable settlement,
stipulation of facts and issues, mode of discovery,
alternative dispute resolutions, marking of exhibits,
number and names of witnesses, nature of their
testimonies, trial dates, and other matters to aid in its
prompt disposition (A.M. No. 03-1-09-SC)
The proceedings during the preliminary
conference shall be recorded in the Minutes of
Preliminary Conference to be signed by both parties
and counsel.
 THE PRE-TRIAL CONFERENCE
After the preliminary conference, the case is
set for pre-trial conference before the presiding
judge, which is mandatory in civil and criminal
cases. It considers the possibility of plea
bargaining, amicable settlement, submission to
alternative modes of dispute resolution [R.A. 9285
(2004)], reference of issues to a commissioner,
stipulation of facts and issues, marking of exhibits,
and all matters which may aid the prompt
disposition of the action (Sec. 2, Rule 18; Sec. 1,
Rule 118).
 PRE-TRIAL ORDER
Within 10 days after the termination of the Pre-
Trial, the trial judge shall issue a Pre-Trial Order setting
forth the actions taken during the pre-trial conference
and those taken during the preliminary conference before
the Branch Clerk of Court, citing or incorporating therein
the written pre-trial agreement (minutes) signed by the
accused and counsel and approved by the Court (Sec. 2,
Rule 118).
Said Pre-Trial Order shall bind the parties and,
limit the trial to matters not disposed of during the pre-
trial, and control the course of the action during the trial
(Sec. 7, Rule 18; Sec. 4, Rule 118).
 THE ORAL OFFER OF WITNESS’
JUDICIAL AFFIDAVIT
Presently, the oral offer of judicial affidavit (written
testimony) must be made at the time the witness is called to
testify, the purpose for which the evidence is offered must be
specified (Sec. 6, JAR, A.M. No. 12-8-8-SC; Cf. Sec. 34 & 35,
Rule 132), and the facts or questions and answers stated
therein must be competent and relevant to the ultimate and
evidentiary facts in issue.
While the judicial affidavit in regular cases under the
old rule, and in summary procedure under the Revised Rule
on Summary Procedure, were normally marked as
documentary exhibits, the judicial affidavit under the Judicial
Affidavit Rule are no longer marked as such but are treated as
written testimonial evidence.
 A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or Filipino,
accompanied by a translation English or Filipino, and shall
contain the following:
(a) The name, age, citizenship, civil status, residence or
business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts
or supervises the examination of the witness and the place
where the examination is being held;
(c) A statement that the witness is answering the
question asked of him, fully conscious that he does so under
oath, and that he may face criminal liability for false
testimony or perjury;
 (d) Questions asked of the witness and his corresponding
answers, consequently numbered, that:
(1) Show the circumstances under which the
witness acquired the facts which he testifies;
(2) Elicit from him those facts which are
relevant to the issues that the case presents; and
(3) Identify the attached documents and other object
evidence and establish their authenticity in accordance with
the Rules of Court.
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized to administer the
same (Sec. 3. JAR)
 The judicial affidavit shall contain a sworn
attestation at the end, executed by the lawyer who
conducted or supervised the examination of the
witness, xxx that:
(1) He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness gave; and
(2) Neither he or any person then present or
assisting him coached the witness regarding the
latter’s answer (Sec. 4, JAR).
 The Judicial Affidavit Rule shall apply to all
actions, proceedings, and incidents requiring the
reception of evidence before: (1) MtTCs, MTCCs,
MTCs, MCTCs, and SCCs but shall not apply to small
claims cases; (2) RTC, and SDCs ; (3) Sandiganbayan,
CTA, and SACs; (4) Investigating officers and bodies
to authorized by the Supreme Court to received
evidence, including the IBP; (5) Special courts and
quasi-judicial bodies, whose rules of procedure are
subject to disapproval of the Supreme Court,
insofar as their existing rules of procedure
contravene the provisions of this rule.
 The said rule shall apply to all criminal
actions:
1. Where the maximum of the imposable
penalty does not exceed six years;
2. Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved;
3. With respect to the civil aspect of the
actions, whatever the penalties involved are.
 THE PLAINTIFF’S EVIDENCE
DIRECT EXAMINATION:
The Presentation of Plaintiff/Prosecution’s Evidence (or its
proving evidentiary facts) is the first in the order of trial (Sec. 5, Rule
30; Sec. 19, Rule 119).
This is initially done in the first order in the examination of an
individual witness by the proponent (Sec. 4(a), Rule 132), or the stage
of examination-in-chief of a witness by the party presenting him on
facts which are relevant to the issue (Sec. 5, Rule 132).
This is also the plaintiff/prosecution’s duty or burden of proof
to prove the ultimate and/or evidentiary facts in issue by presenting its
witness, and by asking questions limited only to the identification and
authentication of the witness’ judicial affidavits, as the exhaustive
direct examination is being done ex-parte, particularly in the taking of
judicial affidavits of the counsel’s law office.
 Republic of the Philippines
Municipal Trial Court in Cities
11th Judicial Region
Branch 1, Davao City

People of the Philippines, Crim. Case No. 123

- versus - For: Violation of B.P. Blg. 22
Juan dela Cruz,
Accused.
X--------------------------------x

JUDICIAL AFFIDAVIT

I, PEDRO DELA CRUZ, 30 years old, Filipino citizen, single, and a resident of
123 C. M. Recto St., Davao City, after being duly sworn in accordance with law, depose
and say:
That Atty. Jose dela Cruz is my counsel who conducted
the examination of me as complaining witness, held at his law
office located at Room G, 2/F, Valgosons Bldg. I, City Hall Drive on
May 18, 2015;
That I am answering the questions asked of me, fully
conscious that I do so under oath and that I may face criminal
liability for false testimony or perjury;
That the questions asked of me and my corresponding
answers are consecutively numbered; Thus,
QUESTIONS AND ANSWERS
Q1: Mr Witness are you the same Pedro dela Cruz, the
private complainant in this case?
A1: Yes, sir.
 Q2: Do you know the accused in this case?
A2: Yes, sir.

Q3: If he is present inside the court room, will you please identify
him?
A3: Yes, sir.
(Witness may be asked later in the court to identify the accused)

Q4: Why do you know the accused?

A4: He is my friend for a long time already.

Q5: What caused you to institute this present complaint against the
accused?
A5: He borrowed money from me and he issued a post-dated check
in the amount of P100,000.00 in payment thereof.
 Q6: I am showing to you a check dated April 30, 2015 in the amount
of P100,000.00, how is this related to the check you have just mentioned?
A6: This is the check issued to me by the accused in payment of his
obligation.

Q7: Where did he issue this check?

A7: In our house, sir.

Q8: There is signature below, whose signature is this?

A8: The signature of the accused, sir.

Q9: How did you know that this is his signature?

A9: He signed this in front of me
 Q10: What happened to this check?
A10: On May 5, 2015, I presented this check to the
drawee bank for payment, but it was dishonored for
reason “ACCOUNT CLOSED”.

Q11: What did you do then after this check was

dishonored by the drawee bank?
A11: I requested my lawyer to send a notice of
dishonor and demand to pay to the accused.
(NOTE: Further questions on the identification of the
notice of dishonor and demand letter, engagement of
professional services and fees, etc.)
 xxx xxx xxx
Q12: Do you confirm the truthfulness of all your statements in
this Judicial Affidavit?
A12: Yes, sir.

Q13: Do you have something more to say, add, deduct or

change your answers in this judicial affidavit?
A13: No more, sir.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this 18thday of May, 2015 in Davao City, Philippines.

PEDRO DELA CRUZ

Affiant-Witness
 SUBSCRIBED AND SWORN to before me this 18th day of May, 2015 in
Davao City, Philippines, affiant exhibited to me his SSS ID No. 09-1234567-8 as
competent evidence of his identity.

JOSE DELA CRUZ

Doc. No. 01 ; Notary Public
Page No. 01 ; Until December 31, 2016
Book No. XI ; PTR No. 123456-1/5/2015
Series of 2015 ; Issued in Davao City

ATTESTATION

I, ATTY. JOSE DELA CRUZ, under oath depose and say:

1. That I am the lawyer who, on May 18, 2015, conducted the

the examination on PEDRO DELA CRUZ as a witness in the
above-entitled case;
2. That I faithfully recorded or caused to be recorded
the questions I asked and the corresponding answers that the
affiant gave;
3. That neither I nor other persons, coached the
witness regarding his answers in the conduct of the
examination.
IN WITNESS WHEREOF, I have hereunto set my hand
this 18th day of May, 2015 in Davao City, Philippines.

JOSE DELA CRUZ

Affiant
 SUBSCRIBED AND SWORN to before me this 18th day of
May, 2015 in Davao City, Philippines, affiant exhibited to me
his SSS ID No. 09-0403717-9 as competent evidence of his
identity.

PABLO DELA CRUZ

Doc. No. 10 ; Notary Public
Page No. 02 ; Until December 31, 2016
Book No. XII ; PTR No. 234567-1/5/2015
Series of 2015 ; Issued in Davao City
 CROSS EXAMINATION
The cross-examination by the opponent is the
second order in the examination of an individual
witness (Sec. 4(b), Rule 132). Its primary purpose is
to test the accuracy and truthfulness of the witness
free from personal interest or bias. All important
facts are elicited with sufficient fullness and
freedom (Sec. 6, Rule 132). This is the period of
looking into the missing or weakest connecting links
or parts of the visual structure of the adverse
party’s definite legal theory. The witness may be
discredited through impeaching evidentiary facts.
 RE-DIRECT EXAMINATION
The re-direct examination is the third order in
the examination of an individual witness (Sec. 4(c),
Rule 132). It is the stage when a witness may be re-
examined by the party calling him to explain his
answer(s) given during the cross-examination (Sec.
7, Rule 132).
This should be done if some of the answers of
the witness on cross examination are doubtful
which has caused damage to the complainant’s
case. The purpose is to repair such damage
through rehabilitating evidentiary facts.
 RE-CROSS-EXAMINATION
The re-cross-examination is the fourth
order in the examination of an individual
witness (Sec. 4(d), Rule 132). This is the period
when the witness may be re-cross-examined by
the adverse party on matters stated in the re-
direct examination, and on such matters as may
be allowed by the court in its discretion (Sec. 8,
Rule 132).
 THE PLAINTIFF’S ORAL
OFFER OF EXHIBIT
In the case of Recuerdo vs. People, G.R.
No. 133036, Jan. 22, 2003, the SC said: “It is not
required much less indispensable, for the
prosecution to present the drawee bank’s
representative as a witness to testify on the
dishonor of the checks because of insufficiency
of funds. The prosecution my present only the
complainant as a witness to prove all the
elements of the offense”.
 UNDER THE OLD RULE
An Oral or Written Offer of Exhibits or evidence shall
be done after the presentation of a party’s testimonial
evidence (Sec. 35, Rule 132). If not formally offered, the
evidence shall not be considered by the court (Sec. 34, Rule
132; Far East Bank vs. Commissioner of BIR, G.R. No. 149589,
9/16/06).
But even if the evidence has not been formally offered,
the same shall be considered on condition that : (1) the
evidence must have been identified by testimony duly
recorded; and (2) it must have ben incorporated in the records
of the case (Onate v. CA, 320 Phil. 344 (1995); PP v. Napat-a
179 SCRA 403 (1989); PP v. Mate, 103 SCRA 484 (1981); But
read Parel v. Prudencio, G.R. No. 146556, 4/19/06)
 UNDER THE NEW RULE
A party-proponent shall not make the written offer
of exhibits anymore. Thus, upon termination of the
testimony of his last witness a party shall immediately
make an oral offer of evidence of his documentary or
object exhibits, piece by piece, stating the purpose for
which he offers the particular exhibit (Sec. 8(a), A.M. No.
8-8-SC).
He shall simply cite the exhibits by their markings
during the offer and dispensing with the description of
each exhibit (Sec. 8(c)). Necessarily, the adverse party
shall interpose objections thereto also piece by piece.
Then the court shall rule on the admissibility of exhibits
also piece by piece.
 Certainly, without an oral offer of exhibits as
mandatorily required under the JAR, the same shall be
deemed not formally offered. Axiomatically, exhibits not
formally offered shall not be considered in evidence (Cf.
34, Rule 132).
An oral offer of exhibits is the Sixth (6th) Instance
of introducing a party’s definite legal theory. The party
making such oral offer assumes that all three (3)
elements of the party’s cause of accusation in this
criminal case are sufficiently supported by his written
testimony and exhibits described, identified, and marked
therein.
 TENDER OF EXCLUDED EVIDENCE
If documents or objects offered in evidence are
excluded by the court, the offeror may have the same
attached to or made part of the record (Sec. 40, Rule 132).
Considering that exhibits are described and marked in
a judicial affidavit, the offeror may apply the same rule on
tender of excluded testimony in a judicial affidavit (Sec. 6
JAR).
The tender of excluded evidence is also known as
proffer of evidence. The purpose of such offer is to inform the
court what is expected to be proved and to procure
exceptions to the excluding of the offered evidence so that
the higher Court may determine from the record whether the
proposed evidence is competent.
 MOTION FOR LEAVE OF COURT TO
FILE DEMURRER TO EVIDENCE
If its exhibits are admitted in evidence by the
court, the prosecution may rest its case. Then within a
non-extendible period of five (5) days from receipt of the
Order (Ruling on the offer of exhibits), the defense may
file a motion for leave of court to file a demurrer to
evidence.
Such motion shall categorically state that the
evidence for the prosecution is insufficient to prove the
guilt of the accused beyond reasonable doubt. The
prosecution may oppose the motion within a non-
extendible period of five (5) days from its receipt (Sec. 23,
Rule 119).
 THE DEMURRER TO EVIDENCE
If leave of court is granted, the accused shall
file the demurrer to evidence within a non-
extendible period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence
within a similar period from its receipt (Sec. 23,
Rule 119).
The demurrer shall comprehensively discuss
the prosecution’s evidence piece by piece and shall
show that none of which is sufficient to prove the
guilt of the accused beyond reasonable doubt.
 DENIAL OF DEMURRER TO EVIDENCE
If the demurrer is denied, the accused has still the
right to present evidence. But if filed without leave of
court, the accused is deemed to have waived his right to
present evidence, and the case shall be decided based
solely on the evidence for the prosecution.
Under the rules, a court order denying the motion
for leave of court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal or by
certiorari before judgment (Last par. Sec. 23, Rule 119),
except by certiorari under Sec. 1, Rule 65; Ong v. PP, 342
SCRA 372),
 THE DEFENSE’S EVIDENCE
The defense’s presentation of controverting
evidentiary facts is its fifth (5th) instance of introducing the
structure of accused/defendant’s definite legal theory of
defense (DDLT).
DIRECT EXAMINATION:
The defense having the duty or burden of evidence
(not the burden of proof) may present evidence to
disprove/controvert the prosecution’s proving facts – that the
accused did sign any return card and did receive the written
notice of dishonor from the drawee bank’s representative.
Such facts are the defense’s disproving or controverting
evidentiary facts against the prosecution’s proving evidentiary
facts: (1) of a written notice of dishonor; and (2) of the receipt
of such notice by the accused.
 THE DEFENSE’S ORAL OFFER
OF EXHIBITS
The defense’s oral offer of exhibits is the sixth (6th)
instance of introducing the accused’s theory of defense
(PDLT).
If the defense has no documentary/object exhibits,
then he is deemed to have rested its case, If the defense
has exhibits but are not admitted in evidence by the
court, then: 1) it may tender its would-be excluded
evidence (Sec. 40, Rule 132; Sec. 6, JAR) for the appellate
court to consider; 2) so, its evidence would be limited
only to written testimonial evidence, or accused
testimony in his judicial affidavit; 3) Then, the
prosecution may move to submit its case for decision; or
4) It may opt to present its rebuttal evidence
 THE REBUTTAL EVIDENCE
The facts that may be elicited during the reception of
prosecution’s rebuttal evidence are the prosecution’s rehabilitating
evidentiary facts, which may be established by way of a supplemental
affidavit-complaint (Sec. 15, RRSP), with supporting documents, to be
presented, identified, and authenticated by the witness-affiant during
the direct examination subject to cross, redirect and re-cross-
examination by counsels.
In this typical criminal case for Violation of B.P. 22, the accused
vehemently denied the receipt of a written notice of dishonor of his
check. Here the prosecution presented a postman in order to rebut
the defense’s controverting evidentiary facts, and to rehabilitate its
proving facts which woyuld establish its ultimate fact – that the
accused herein had actual knowledge of the insufficiency of his funds.
To elaborate, the parties respectively presented the state of facts of
said case in the following order:
 1st – the ultimate fact of the prosecution is the
knowledge of the accused on the insufficiency of funds;
2nd – the proving fact of the prosecution is its
service of a written notice of dishonor to the accused;
3rd – the controverting fact of the accused is
his/her de ial of receipt of a weitten noticer of dishonor;
4th – the rehabilitating fact of the prosecution is
the accused’ actual receipt of a written notice of dishonor
as shown by an authenticated rdgistry receipt and return
card.
 Receipts for registered letter and return
receipts do not prove themselves; they must be
properly authenticated of receipt of the letter in
order to serve as proof of receipt of the letters.
(Ting vs. CA, 344 SCRA 551 (2000).
When the criminal case was called for the
presentation of prosecution’s rebuttal evidence, the
proceeding ensued, thus:
Court: Appearances?
Pub. Pros.: For the State your