Right to cross-examine

1. In a criminal case, the prosecution presented a witness. Midway towards the cross-examination by the
defense counsel, the defense moved for continuance upon the ground that it was essential that some inquiry be made
by the defense from outside sources before the cross-examiner could intelligently continue on the remaining factual
matters in the direct testimony. The motion was granted and the trial was reset to another date. But the witness died
so that he could not be presented for the continuance of the cross-examination. The defense moved to strike the entire
testimony of the deceased witness upon the ground that otherwise the accused would be denied full enjoyment of his
right to confrontation and cross-examination.
a) If you were the fiscal, what arguments will you offer to oppose the motion?

Answer:
As the fiscal, I would argue that the defense had waived its right to cross-examine the witness by
not continuing the cross-examination and moving for continuance at the middle thereof; and that even
assuming there was no waiver, the entire testimony of the deceased witness should not be stricken off the
record because that portion of the testimony on which the defense had been able to cross-examine the
witness is admissible in evidence.

b) If you were the judge, how would you rule on the motion? Why? (1987, # 7)

Answer:
As the Judge, I would rule that there was no waiver of the right of cross-examination on the part
of the defense inasmuch as the court granted its motion for continuance without objection on the part of
the prosecution. However, I would deny the motion to strike out the entire testimony of the deceased
witness and admit in evidence that portion of the testimony on which the defense had been able to cross-
examine the witness.

Raul Rodrigo was charged of robbery with homicide before the RTC of Rizal. After presenting
3 witnesses, the prosecution could no longer proceed since its 2 most instrumental
witnesses, AB and CD, are now both permanently residing in the US. The fiscal then moved
to have their depositions taken by way of written interrogatories. Their depositions having
taken although without the participation of accused Raul Rodrigo, the fiscal now seeks to
introduce the same contending that without its admission, there will be a failure of justice
since at its present stage, there is not even a prima facie case against Rodrigo. Over the
vigorous objection of the defense, the trial court admitted said depositions. Rodrigo was
convicted and thereafter sentenced to reclusion perpetua.
Discuss with reasons the tenability of the trial court’s ruling on the admission of said
depositions. (1985, #10)
Answer:
The trial court erred in admitting said depositions over the objection of the defense.
Under Section 7 of Rule 119, deposition or conditional examination of a witness for the
prosecution may be taken only before the judge or the court where the case is pending.
Moreover, the accused Raul Rodrigo had no participation in the taking of the depositions. He
could not have participated therein inasmuch as the deponents were in the US. Therefore,
he was denied the right to cross-examine the witnesses against him, and the depositions are
hearsay.