EVIDENCE OUTLINE

TESTIMONIAL EVIDENCE

1. Qualifications of a witness
2. Competency v. credibility of a witness
a. Disqualifications of witnesses
b. By reason of mental capacity or immaturity
c. By reason of marriage
d. By reason of death or insanity of adverse party
e. By reason of privileged communications.
N. Examination of a witness.

1. The examination of witnesses presented in a trial or hearing shall be done in open court
and under oath or affirmation. The answers of the witness shall be given orally except if:
(a) the witness is incapacitated to speak, or (b) the question calls for a different mode of
answer.1
2. The questions propounded to the witness and his answers thereto shall be recorded. Also
to be recorded are the statements made by the judge, any of the parties or any of the
counsels. In fact, the entire proceedings of the trial or hearing must be recorded. The
recording may be shorthand, stenotype, or any means of recording found suitable by the
court.2
3. The official stenographer, stenotypist, or recorder shall make a transcript of the record of
the proceedings and shall be certified by him as correct. The transcript so prepared and
certified shall be deemed prima facie a correct statement of such proceedings.3

Open court examination; exceptions

1. Sec. 1 of Rule 132 provides for the examination of the witness in open court and, unless
the question call for a different mode, the answer of the witness shall be given orally.

1
Sec. 1, Rule 132, Rules of Court
2
Ibid
3
Ibid
 This method allows the court the opportunity to observe the demeanor of the witness and
also allows the adverse party to cross-examine the witness.
2. There are testimonies that need not be given in open court. Under the Rules on Summary
Procedure, the affidavits of the parties shall constitute the direct testimonies of the
witnesses who executed the same.4
3. Depositions need not be taken in open court. They may be taken before a notary public5
or before any person authorized to administer oaths.6
4. In a criminal case, either party may utilize the testimony of a witness who is decease, out
of the country, or one who is unavailable or unable to testify despite the exercise of due
diligence, even if the testimony was one used in another case or proceeding, judicial or
administrative, provided the said proceeding involved the same parties and subject matter
and the adverse party had the opportunity to cross-examine the witness.7
5. Under the Judicial Affidavit Rule, the judicial affidavit shall take the place of direct
testimonies of witnesses8

Oath or affirmation:
1. The witness must take either an oath or an affirmation9 but the option to do so is given to
the witness and not to the court.
2. An oath is an outward pledge made under an immediate sense of responsibility to God, or
a solemn appeal to the Supreme Being in attestation of the truth of some statement10 An
affirmation is a substitute for an oath, and is a solemn and formal declaration that the
witness will tell the truth.11
3. Where the witness refuses to take an oath or give any affirmation, the testimony may be
barred12

4
Sec. 15, Rule on Summary Procedure
5
Sec. 10, Rule 23, Rules of Court
6
Sec. 14, Rule 23, Rules of Court
7
Sec. 1[f], Rule 115, Rules of Court
8
Sec. 2, Judicial Affidavit Rule
9
Ibid.
10
Black’s Law Dictionary, 5th ed., p.966
11
ibid., 55
12
U.S. vs Fowler, 605 F. 2d 181 [5th Cir. 1979]
 4. The rule requiring an oath or an affirmation is satisfied when the court takes pains to
impress on the witness the need to testify truthfully and the witness says he would.13 No
special wording is necessary for an affirmation, provided that the language used is
designed to impress upon the individual the duty to tell the truth.14

Examination of witnesses and record of proceedings

The examination of witnesses presented in trial or hearing shall be done in open court and under
oath or affirmation. The answers of the witnesses shall be given orally except if: (a) the witness
is incapacitated to speak, or (b) the question calls for a different mode of answer15

Bar 1978
After the accused himself had testified in his defense in a murder case, the trial judge,
over the objection of the fiscal, allowed the defense counsel to file and merely submit the
affidavits of the other witnesses of the accused in lieu of their direct testimony but subject
still to cross-examination by the prosecution. The fiscal thus filed with the Supreme Court a
petition for certiorari and prohibition to nullify the order of the trial court judge allowing
such a procedure. Should the petition be granted?

Suggested answer:
The petition should be granted. The provisions of the Rules of Court require that the
examination of the witnesses shall be done in open court and their answered be given orally,
not in writing unless the exceptions mentioned therein apply to wit: (a) the witness is
incapacitated to speak, or (b) the questions calls for a different mode of answer.16 None of the
exceptions apply to the case under consideration. The court therefore, acted in excess of
jurisdiction amounting to lack of jurisdiction when it allowed the presentation of the
affidavits without an oral examination of the witness.
a. Rights and obligations of a witness.

13
U.S. vs Salim, 855 F. 2d 944 [2nd Cir. 1988]
14
U.S. vs Kalaydjian, 784. 2d 53 [2d Cir. 1986]
15
Supra.
16
Ibid.
 A witness must answer questions, although his answer may tend to establish a claim against
him. However, according to Rule 23, Section 3 of the Rules of Court it is the right of a witness:

1. To be protected from irrelevant, improper, or insulting questions, and from harsh or

insulting demeanor;

2. Not to be detained longer than the interests of justice require;

3. Not to be examined except only as to matters pertinent to the issue;

4. Not to give an answer which will tend to subject him to a penalty for an offense unless
otherwise provided by law; or

5. Not to give an answer which will tend to degrade his reputation, unless it to be the very
fact at issue or to a fact from which the fact in issue would be presumed. But a witness
must answer to the fact of his previous final conviction for an offense.

*Note: Under R.A. 6981 (Witness Protection, Security, and Benefit Act), a witness admitted
into the witness protection program cannot refuse to testify or give evidence or produce books,
documents, records or writings necessary for the prosecution of the offense or offenses for
which he has been admitted on the ground of the right against self-incrimination17

Bar 2005

Under R.A. 8353, one may be charged with and found guilty of qualified rape if he knew
on or before the commission of the crime that he is afflicted with Human Immuno-Deficiency
Virus (HIV)/ Acquired Immune Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is transmitted to the victim. Under Sec. 17(a) of
R.A. 8504, the court may compel the accused to submit himself to a blood test where blood
sample would be extracted from his veins to determine whether he has HIV.

Are the rights of the accused to be presumed innocent of the crime charged, to privacy,
and against self-incrimination violated by such compulsory testing?

17
Sec. 14, R.A. 6981
 Suggested answer:

The rights of the accused are not violated by such tests. This is a settled rule. There is no
testimonial compulsion involved by extracting blood from the accused for testing purposes
(Tijing vs Court of Appeals, 354 SCRA 17). There is hence, no violation of the right to privacy
and the right to be presumed innocent.

ONE-DAY EXAMINATION OF WITNESS RULE [AM 03-1-09-SC]

A witness has to be fully examined in one (1) day only. It shall be strictly adhered to subject to
the courts' discretion during trial on whether or not to extend the direct and/or cross-examination
for justifiable reasons.
Examination of a child witness; live link television
1. The examination of a child witness presented in a hearing or any proceeding shall be
done in open court. Unless the witness is incapacitated to speak, or the question calls for
a different mode of answer, the answers of the witness shall be given orally.18

The examination in this provision does not refer to the competency examination of the child
pursuant to Sec. 6 of the same rule, but to a situation where the child is already testifying in
court. Under Sec. 6(c), only specified persons are allowed to attend the competency examination
of the child and is obviously not an open court examination.

When the child is testifying, the court may exclude the public and persons who do not have a
direct interest in the case, including members of the press. The order shall be made if the court
determined on the record that to testify in open court would cause psychological harm to him,
hinder the ascertainment of truth, or result in his inability to effectively communicate due to
embarrassment, fear or timidity. The court may also motu proprio exclude the public from the
courtroom if the evidence to be produced during trial is of such character as to be offensive to
decency or public morals. The court may also, on motion of the accused, exclude the public from
trial, except court personnel and the counsel of the parties.19

18
Sec. 8, Rule on Examination of a Child Witness
19
Sec. 23, ibid.
 2. When a child does not understand the English or Filipino language or is unable to
communicate in said languages due to his developmental level, fear, shyness, disability,
or other similar reason, an interpreter whom the child can understand and who
understands the child may be appointed by the court, motu proprio or upon motion, to
interpret for the child.20 If a witness or member of the family of the child is the only
person who can serve as an interpreter for the child, he shall not be disqualified and may
serve as the interpreter of the child. The interpreter, however, who is also a witness, shall
testify ahead of the child.21

3. The court may, motu proprio or upon motion, appoint a facilitator if it determines that the
child is unable to understand or respond to questions asked. The facilitator may be a child
psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader,
parent, or relative.22

4. (a) A child testifying at a judicial proceeding or making a deposition shall have the right
to be accompanied by one or two persons of his own choosing to provide him emotional
support.
(1) Both support persons shall remain within the view of the child during his
testimony.
(2) One of the support persons may accompany the child to the witness stand,
provided the support person does not completely obscure the child from the
view of the opposing party, judge, or hearing officer.
(3) The court may allow the support person to hold the hand of the child or take
other appropriate steps to provide emotional support to the child in the course
of the proceedings.
(4) The court shall instruct the support persons not to prompt, sway, or influence the
child during his testimony.

20
Sec. 23, ibid.
21
Ibid.
22
Ibid.
 (b) If the support person chosen by the child is also a witness, the court may disapprove
the choice if it is sufficiently established that the attendance of the support person
during the testimony of the child would pose a substantial risk of influencing or
affecting the content of the testimony of the child.
(c) If the support person who is also a witness is allowed by the court, his testimony shall
be presented ahead of the testimony of the child.23

5. An application may be made for the testimony of the child to be taken in a room outside
the courtroom and be televised to the courtroom by live-link television. The application
may be made by the prosecutor, counsel or guardian ad litem at least five (5) days before
the trial date.24

The court may order that the testimony of the child be taken by live-link television if there is a
substantial likelihood that the child would suffer trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which
would impair the completeness or truthfulness of the testimony of the child.25

If it is necessary for the child to identify the accused at trial, the court may allow the child to
enter the courtroom for the limited purpose of identifying the accused, or the court may allow the
child to identify the accused by observing the image of the latter on a television monitor26

6. The testimony of the child shall be preserved on videotape, digital disc, or other similar
devices which shall be made part of the court record and shall be subject to a protective
order27.

23
Sec. 11, ibid.
24
Sec. 25[a], ibid
25
Sec. 25[f], ibid
26
Sec. 25[g][3], ibid
27
Sec. 25[h], ibid.
 7. To shield the child from the accused, the court may allow the child to testify in such a
manner that the child cannot see the accused by testifying through one-way mirrors, and
other devices.28

8. Any record regarding a child shall be confidential and kept under seal. Except upon
written request and order of the court, a record shall only be released to the following:

(1) Members of the court staff for administrative use;

(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies; and
(6) Other persons as determined by the court.29

9. Whoever publishes or causes to be published in any format the name, address, telephone
number, school, or other identifying information of a child who is or is alleged to be a
victim or accused of a crime or a witness thereof, or an immediate family of the child
shall be liable to the contempt power of the court30

10. Where the youthful offender has been charged before any city, or provincial prosecutor or
any municipal judge and the charges have been dropped, all the records of the case shall
be considered as privileged and may not be disclosed directly or indirectly to anyone for
any purpose whatsoever. If he is charged and acquitted or the case is dismissed, the
records are also privileged, as a rule.31

28
Sec. 26, ibid
29
Sec. 31[a], ibid
30
Sec. 31[d], ibid
31
Sec. 31[g], ibid
The youthful offender, who fails to acknowledge the case against him or to recite any fact related
thereto in response to any inquiry made to him for any purpose, shall not be held under any
provision of law to be guilty of perjury or of concealment or misrepresentation.32

b. Order in the examination of an individual witness.

(a) ORDER OF EXAMINATION

Order in the examination of an individual witness. — The order in which the individual witness
may be examined is 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.33

1. Direct examination. — Direct examination is the examination-in-chief of a witness by the

party presenting him on the facts relevant to the issue.34

2. Cross-examination; its purpose and extent. — Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to many matters
stated in the direct examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue.35

3. Re-direct examination; its purpose and extent. — After the cross-examination of the
witness has been concluded, he may be re-examined by the party calling him, to explain
or supplement his answers given during the cross-examination. On re-direct-examination,

32
Sec. 31[g], ibid.
33
Ibid.
34
Sec. 5, ibid.
35
Sec. 6, ibid.
 questions on matters not dealt with during the cross-examination, may be allowed by the
court in its discretion.36

4. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse

party may re-cross-examine the witness on matters stated in his re-direct examination,
and also on such other matters as may be allowed by the court in its discretion.37

Order of trial in civil cases

Section 5. Order of trial. — Subject to the provisions of section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-
trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of his complaint;

(b) The defendant shall then adduce evidence in support of his defense, counterclaim,
cross-claim and third-party complaints;
(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim,
cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall
adduce evidence in support of their defense, in the order to be prescribed by the
court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, permits them to adduce evidence upon
their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision,
unless the court directs the parties to argue or to submit their respective memoranda
or any further pleadings.

36
Sec. 7, ibid.
37
Sec. 8, ibid
If several defendants or third-party defendants, and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence.38

Order of trial in criminal cases

Section 11. Order of trial. — The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper case, the
civil liability.
(b) The accused may present evidence to prove his defense, and damages, if any, arising
from the issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of justice, permits them to present additional
evidence bearing upon the main issue.
(d) Upon admission of the evidence of the parties, the case shall be deemed submitted for
decision unless the court directs them to argue orally or to submit written memoranda.
(e) When the accused admits the act or omission charged in the complaint or information
but interposes a lawful defense, the order of trial may be modified.39
c. What are leading and misleading questions

Leading questions:

1. A leading question is one that is framed in such a way that the question indicates to the
witness the answer desired by the party asking the question. In the words of Sec. 10 or
Rule 132, it is a question “which suggests to the witness the answer which the examining
party desires.”
2. Leading questions are not appropriate in direct and re-direct examinations particularly
when the witness is asked to testify about a major element of the cause of action or
defense. Leading questions are allowed in cross and re-cross examination.
3. Leading questions are allowed in direct examination in the following instances:
a. On preliminary matters

38
Sec. 5, Rule 30, Rules of Court
39
Sec. 11, Rule 119, ibid.
 b. When the witness is ignorant, or a child of tender years, or is feeble minded or a
deaf mute and there is difficulty in getting direct and intelligible answers from
such witnesses
c. When the witness is a hostile witness
d. When a witness is an adverse party, or an officer, director, or managing agent of a
corporation, partnership, or association which is an adverse party.40
*Note: Sec. 20 of the Rule on Examination of Child Witnesses has modified Sec. 10, Rule 132 of
the Rules of Court, in so far that it allows leading questions in all stages of examination of a
child under the condition that it will further the interest of justice.
Example:
The fact situation is a robbery case. The accused claims innocence and that a couple of
hours after the alleged robbery, he is arrested by the police while in the park with his children.
The defense counsel calls the accused to the stand.

Q: What were you doing in the park?

A: I was taking a stroll with my two adolescent children.

Q: While you were in the park with your children, the police officers arrived to arrest
you, is that true?

The question is leading. It suggests the next event which the witness should testify to.
The attorney could convert the question into a non-leading one by taking the suggestive element
out of the question. Thus, “What happened if any, while you and your children were at the
park?”

Misleading questions:

A misleading question is one which assumes as true a fact not yet testified to by the
witness, or contrary to that which he has previously stated. It is not allowed 41 in any type of
examination.

40
Sec. 10, Rule 132, Rules of Court
Example:
Counsel: “You testified that you and the accused were in a car bound for Baguio City.
How fast were you driving?”

This question is objectionable as misleading where there was no previous testimony from the
witness that he was driving the car. The question assumes a fact not yet in evidence.

d. Methods of impeaching of adverse party’s witness

e. How the witness is impeached by evidence of inconsistent statements?
f. Judicial Affidavit Rule (A.M. No. 12-8-8-SC)

41
Ibid.