EXAMINATION
& IMPEACHMENT OF WITNESSES
ETRIII
REMEDIAL LAW REVIEW Lecture Series
Lecture
Outline No. 5
OUTLINE/
LECTURE ON
EXAMINATION
& IMPEACHMENT OF WITNESSES
By:
Atty. Eduardo T. Reyes, III
(Prepared for Law 3-B,
Univ. of San
Agustin Law School,
SY 2017-2018)
A.
Examination of Witnesses in OPEN COURT
A.1.
Two-Fold Purpose of Requirement that Examination be done in Open Court
-“The
reason for the requirement … is to enable the court to judge the credibility of
the witness’ manner of testifying, their intelligence, and their appearance. It
is unquestionably the safest and most satisfactory method of investigating
facts, and affords the greatest protection to the rights and liberties of the
citizen. Another reason is to secure for the adverse party the opportunity of
cross-examination.[1]”
-According
to Chief Justice Appleton:
“The
witness’ presence, the promptness and unpremeditatedness of his answers or the
reverse, their distinctness and particularity or the want of these essentials,
their incorrectness in generals or particulars, their directness or
evasiveness, are soon detected . . . The appearance and manner, the voice, the
gestures, the readiness and promptness of the answers, the evasions, the
reluctance, the silence, the contumacious silence, the contradictions, the
explanations, the intelligence or the want of intelligence of the witness, the
passions which more or less control – fear, love, hatred, envy, revenge – are
all open to observation, noted and weighed by jury. (5 Wigmore on Evidence p.
136)[2].
A.1.2.
Exception to Examination in OPEN COURT.
a.1.2.1.
Depositions
a.1.2.2. Cases governed by rules on summary procedure; Witness only submits
judicial affidavits
B.
MANNER OF EXAMINATION OF WITNESSES IN GENERAL. –“Examination
of witnesses in open court is by means of oral questions and answers. Such
questions should, of course, be directed to the eliciting of testimony which,
under the general rules of evidence, is relevant to, and competent to prove,
the issue joined but there is no set or artificial method for asking questions
or witnesses. In the examination of a witness the question put should be proper
in form, and questions not proper in form should be excluded. Questions should
be concise and directed to a definite object, not rambling or scattered. The
mode of examination is a matter addressed largely to the discretion of the
trial judge and is subject to his direction and control, having due regard to
the rights of the parties litigant. It may be said that in examination of
witnesses the courts give considerable latitude and indulgence to
characteristics of counsel, who are allowed, for the most part, to follow
dictates of common sense and to choose their own methods of effective
presentation of their side of the case, but subject always to the control of
the trial judge”[3].
C.
FORM AND NATURE OF QUESTIONS.
a)
Preliminary
Questions. Questions which do
not directly relate to a relevant matter may be allowed where they are
preliminary in their nature, and do not necessarily call for illegal or
inadmissible evidence. So, questions that are purely ancillary, and which only
form part of some predicate and lead up to the matters at issue, are not
subject to the objection that they are immaterial, unless they contain
something hurtful within themselves. A preliminary question asked for the
purpose of laying the foundation for the admission of material evidence is
proper.
b) General
questions. While a large
discretion should be allowed the trial court in permitting questions objected
to as not being properly confined to a particular issue and time, it is
nevertheless the rule that a question which is too general or too broad, or is
so general that irrelevant or illegal evidence would be responsive thereto, is
properly excluded.
c) Indefinite
and Uncertain questions. Questions
which tend to confuse the issues in the case are improper. Hence, except where
it is impractical to frame a more definite question on a matter competent for
inquiry, a question which is indefinite and uncertain should not be allowed;
nor should a question which is confusing or unintelligible, or is not clear as
to who or what is being referred to, or is incomplete, or is too vague to bring
out proper evidence of the matter being inquired into.
d) Questions
containing more than single proposition. Questions
containing more than one proposition to which different answers might be given
are improper. Accordingly, a question calling for a yes or no answer which
embodies several separate questions is improper.
e) Ambiguous
Questions. The testimony of
witnesses is elicited by interrogation or the propounding of questions, a
primary requirement in this respect being that a question which is asked of a
witness be direct and free from vagueness, uncertainty or ambiguity. A dispute
to the form of a question is to be resolved in view of the discretion with
which the court vested. It is not permissible on direct examination to put to a
witness a question which assumes erroneously that a material fact in issue has
been proved or that the witness has given certain testimony.
f) Misleading
questions. A question which
might tend to mislead the witness, or is so framed as to produce in the minds
of the jury an impression not warranted by the evidence, should be excluded.
Permitting such questions to be answered may be rendered harmless by
cross-examination of the witness on the matter.
g) Questions
must not be indefinite or uncertain. The
question must not be so indefinite as to fail to put the adverse party on
notice of the testimony sought to be elicited and preclude him from objecting
to the question in such specific manner as to prevent any improper answer, and
to leave it almost entirely to the discretion of the witness as to what matter
he shall elucidate.
h) Questions
must be relevant. Questions should
be framed to elicit testimony which tends to prove the issue involved. Stated
otherwise, the general rule is that questions put to a witness on direct or
redirect examination in both civil and criminal case must be relevant to the
issue in the case. Accordingly, a question calling for evidence irrelevant or
immaterial to the issues should be, and is, properly excluded. The materiality
of a question must appear or be shown at the time the question is asked.
i)
Question must not
be argumentative. A question
which is in the nature of a mere argument with the witness should not be
allowed as for example, a supposed question in the form of an argumentative
statement. A question is argumentative when it seeks to elicit the answer of
the witness to the argument presented. The ruling of the trial judge on the
objection that a question is argumentative is peculiarly within his province.
It is not the function of counsel to argue with the witness or through the
witness to the court.
j) Question
must not call for a conclusion of law. A witness is not permitted to
testify as to a conclusion of law. Among such conclusions of law legal
responsibility is one of the most conspicuous. A witness, no matter how
skillful, is not to be asked or permitted to testify as to whether or not a
party is responsible to the law, or whether certain facts constitute in law an
agency. Law in the sense here used embraces whatever conclusions belong
properly to the court.
k) Question
must not call for opinion or hearsay evidence. A
witness cannot testify to those facts only which he knows of his own knowledge,
that is, which are derived from his own perception, except where a case is a
proper one for the introduction of opinion evidence or calls for a testimony
which falls within the exceptions to the hearsay rule.
l) Question
must not call for illegal answer. Where
a witness is prohibited by law from furnishing certain information, he cannot
be compelled to do so by his answer.
m) Question
must not call for self-incriminating testimony. There
are courts which hold that it is improper to propound questions calling for
self-incriminating answer.
n) Question
must not be leading. –See Section
10, Rule 132.
o) Question
must not be misleading. –See
Section 10, Rule 132.
p) Question
must not tend to degrade the reputation of the witness.
q) Repetitious
questions. – The repetition
of a question after the witness has disavowed knowledge, or has satisfactorily
or substantially answered is properly disallowed, whether the later ques4tion
is identical with the former or merely the same in substance, especially where
the answer already given straightforward and not evasive.On the other hand,
where the answer given to a question is reluctant, and evasive, it is proper
for the court to permit the repetition of such question. [4]“
D.
RIGHTS AND OBLIGATIONS OF A WITNESS
a) To
answer questions although his answer may tend to establish a claim against him;
b) RIGHT not
to give an answer which will tend to subject him to a penalty for an offense;
c) To
be protected from irrelevant, improper, or insulting questions, and from harsh
or insulting demeanor;
d) Not
to be examined except only as to matters pertinent to the issue;
e) Not
to be detained longer than the interest of justice requires; and
f) Not
to give an answer which will tend to degrade his reputation, unless it be the
very fact at issue or to a fact from which in issue would be presumed.[5]
E.
EXAMINATION OF CHILD WITNESS (Rule on Examination of Child Witness).
- 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 determines 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.[6]
- 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 should be of a kind which would
impair the completeness or truthfulness of the testimony of the child. [7]
- Leading
question to a child witness; allowed. Sec.
20 of the Rule on Examination of a Child Witness allows leading questions to be
asked of a child witness “in all stages of examination of a child under the
condition that the same will further the interest of justice”.
F.
KINDS OF EXAMINATION.
a)
Direct examination
– By the direct examination of a witness is
meant that examination in chief of a witness that is, the initial examination
by the party calling him.
b) Cross-Examination- Cross
examination has been defined as the examination of a witness by the party
opposed to the party who called such witness, the latter party having examined,
or having been entitled to examine, such witness in chief. Cross-examination,
generally speaking, is the function of counsel and not of the court. Although
the right of the trial court to examine a witness cannot be denied, it should
stay out of it as much as possible, neither interfering nor intervening in the
conduct thereof.[8]
NOTE: Under
the Judicial Affidavit Rule, (A.M. 12-8-8-SC), Judges were given a greater role
in the examination of a witness. Thus,
“X
x x
Section.
7. Examination of the witness on his judicial affidavit. – The adverse party
shall have the right to cross-examine the witness on his judicial affidavit and
on the exhibits attached to the same. The party who presents the witness may
also examine him as on re-direct. In every case, the court shall take
active part in examining the witness to determine his credibility as well as
the truth of his testimony and to elicit the answers that it needs for
resolving the issues.
b.1.Purpose of Cross-Examination. “The
office of cross-examination is to test the truth of statements of a witness
made on direct examination. Cross examination serves as the safeguard to combat
unreliable testimony, providing a means for discrediting a witness’ testimony,
and is in the nature of an attack on his truth or accuracy.
X x x
Longnecker in his book on “Hints on Trial of
a Lawsuit, summarizes the objects of cross-examination as follows:
ü To
test the knowledge of the witness
ü To
test the competency of the witness to testify
ü To
test the truth of the direct testimony
ü To
test the recollection of the witness
ü To
explain or enlarge testimony brought out in direct examination
ü To
show the motive, interest or animosity of a witness
ü To
ascertain the opportunity the witness had to gather the facts he testified
about
ü To
weaken his testimony given in direct examination
ü To
test the source of his knowledge and determine if it is competent and not
hearsay
ü To
test the relevancy of the testimony
ü To
test the materiality of the testimony.
c) Re-direct Examination. After a witness has been cross-examined, the next stage in the proceeding is his re-examination by the party calling him. This further interrogation by a party of his own witness after the cross-examination is known as re-direct examination[9].
Purpose: (1)
To explain or (2) supplement his answers given during the cross-examination. “According
to Corpus Juris Secundum, the proper function of re-direct examination is to
explain, rebut, or avoid the effect of testimony elicited on cross-examination
and to clear up confusion of the witness”.
e.g. Let’s suppose that the prosecutor forgot
to ask the eye-witness to identify the accused while conducting the direct
examination? Can he be allowed to belatedly do so on re-direct
examination?
Generally
objectionable. However, note the SC ruling dispensing with open court
identification of accused.
-
Identification of Accused Need
Not always be Through “Physical Courtroom Identification”
“Anent the third ground, this Court has already clarified
that in-court identification is not essential where there is no doubt that the
person alleged to have committed the crime and the person charged in the
information and subject of the trial are one and the same, viz: Indeed, during
her testimony, complainant positively and categorically identified appellant,
husband of her sister Loida, as the offender. This categorical and positive
identification leaves no doubt as to the identity of Appellant Quezada as the
rapist. We do not see the absolute need for complainant to point to appellant
in open court as her attacker. While positive identification by a witness is
required by the law to convict an accused, it need not always be by means of a
physical courtroom identification. As the Court held in People v. Paglinawan:
" .... Although it is routine procedure for witnesses to point out the
accused in open court by way of identification, the fact that the witness . . .
did not do so in this case was because the public prosecutor failed to ask her
to point out appellant, hence such omission does not in any way affect or
diminish the truth or weight of her testimony." In-court identification
of the offender is essential only when there is a question or doubt on whether
the one alleged to have committed the crime is the same person who is charged
in the information and subject of the trial. This is especially true in cases
wherein the identity of the accused, who is a stranger to the prosecution
witnesses, is dubitable. In the present case, however, there
is no doubt at all that the rapist is the same individual mentioned in the
Informations and described by the victim during the trial.21 (emphasis
supplied) This Court does not find that such doubt exists in this case.
Notably, petitioner never denied that he is the person indicted in the
information, much less offered proof that he is not the same person being fi'f
20 Id. at 47. 21 People v. Quezada, 425 Phil. 877, 883 (2002). Decision 9 G.R.
No. 197475 charged with the offense. He merely proffers that he was not
identified in open court by the prosecution's sole witness as the one who
issued and signed the check. He does not dispute that he issued and signed the
check as, in fact, on the date set for his arraignment and after being
arraigned, he and the prosecution jointly moved to terminate the pre-trial in
an attempt to settle the obligation arising from the issued check. This is a
patent acknowledgment that he is the person being charged with committing the
offense and subject of the trial. It strains credulity to believe that he would
willingly attempt to settle an obligation created by a bouncing check if he
were not the same person charged with issuing it. Moreover, it must be noted
that the lack of identification by the witness in open court was due to
petitioner's failure to appear, despite due notice, on the date set for the
prosecution's presentation of evidence, in which the testimony of Nelson was
offered. In its judgment, the MTCC noted that the initial presentation of
evidence for the prosecution was postponed at the instance of accused until it
was finally heard on 20 October 2004, despite the petitioner's absence, even
though the latter was aware of the scheduled hearing. Again, when the
cross-examination was set for hearing, petitioner and counsel failed to appear,
prompting the MTCC to deem his absence as a waiver of his right to
cross-examination and to direct the prosecution to formally offer its
documentary exhibits.22 Clearly, the failure to identify petitioner in open
court was directly attributable to his actions. To sustain petitioner's
assertion and absolve him of penal liability on this ground alone would open
the floodgates for malefactors to evade conviction by the simple expedient of
refusing to appear on scheduled hearings where they expect to be identified in
court. This sets a dangerous precedent and is undoubtedly antithetical to the
foundations of our justice system.
MARK MONTELIBANO v. LINDA
YAP, G.R. No. 197475, Dec. 06, 2017
d) Re-cross
examination. Is the operation
of examining a witness who has finished his examination in chief,
cross-examination, and re-direct examination, by the lawyer who cross-examined.[10]
-SCOPE. After
the re-direct examination of the witness has been concluded, the adverse party
may re-cross-examine the witness (1) on matters stated in his re-direct
examination and (2) on such other matters as may be allowed by the Court in its
discretion[11].
“thus,
it is proper to allow re-cross-examination on a subject which was opened upon
on direct examination, or as to new matter which was brought out on
redirect examination, or which is designed to test the credibility of the
witness or of testimony elicited on redirect examination. X x x
It
is proper to exclude questions as to matters which were not opened up,
or brought out, on redirect examination, or as to matters with respect to which
the witness was examined on direct examination, or as to matters with respect
to which he was cross-examined, or as to which there was an opportunity to
cross-examine him, where there is no claim of oversight and no reason stated
why the matter was not inquired into on the cross-examination proper.[12]”
G.
RECALLING A WITNESS. “if a witness has
been examined by both sides, the witness cannot be recalled without
leave of court. Recalling a witness is a matter of judicial discretion. In
the exercise of its discretion, the court shall be guided by the interests of
justice.[13]
H.
IMPEACHMENT OF WITNESS;
Sec.
11, Rule 132- Impeachment of adverse party’s witness.
A
witness may be impeached through the following modes:
a.
By contradictory evidence
NOTE:
But you cannot impeach the witness by asking him to comment on
(i)the
assertions of another witness which is contradictory
(ii)
Documents which may embody contradictory propositions but over which execution
the witness had no participation in
b.
By evidence that his general reputation for truth, honesty or integrity is bad;
or
c.
By evidence that he has made at other times statements inconsistent with his
present testimony.
Sec.
13, Rule132- How witness impeached by evidence of inconsistent statements
H.1.
Rules on Impeaching a Witness
Accused-appellant Winston de Guzman was
charged before the Regional Trial Court of Mati, Branch 5, Davao Oriental[1] with the crime of rape in an information docketed
as Criminal Case No. 2584, and which alleged:
That
on or about June 9, 1994, in the Municipality of Governor Generoso, Province of
Davao Oriental, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused with lewd designs, by means of force, violence
and intimidation, did then and there wilfully, unlawfully and feloniously have
carnal knowledge of one JOVELYN A. GERAM, a (sic) against her will.[2]
Appellant pleaded not guilty when arraigned
on the aforequoted indictment on September 5, 1994,[3] and the case then went to trial.
The evidence for the prosecution reveals that
14-year old complainant, Jovelyn A. Geram,[4] was alone in their residence at Barangay Monserrat,
Governor Generoso, Davao Oriental when the crime was committed in the afternoon
of June 9, 1994 by appellant who had managed to gain entry into the house.
Complainant was sleeping at around two oclock
that afternoon when she was awakened by the weight of something on top of her. Upon
opening her eyes, she saw herein appellant naked and sitting on her thighs. Complainant
instinctively tried to shout for help but appellant covered her mouth and nose
with his hand and warned her not to resist or she would be killed.A struggle
between the two ensued thereafter. The strength of appellant and the
strain of complainants efforts at resistance took its toll on the latter,
causing her to feel weak and faint.
On recovering her senses, complainant
discovered that she was already undressed and she saw blood on her vagina. She
also noticed some white fluid on her abdomen and thighs.Complainant felt pain
on her genitals and other parts of her body. Appellant was no longer around,
and the hapless complainant was left crying over the tragedy which had befallen
her.
In the evening of the same day, a neighbor,
Florami Bayno, arrived in the house of the Gerams to watch television. Complainant
went with Florami when the latter went home. They proceeded to the house
of Mauricia and Hugo Bayno, close friends of the Gerams and Floramis
parents-in-law. In front of the couple, complainant recounted her ordeal
at the hands of appellant.
In the morning of June 10, 1994, complainant
went to the house of another neighbor, Genesis Delgado, and confided her
misfortune to the latter. Later, she went to the house of the Baynos and
waited for her parents who were in Barangay Tambo attending to
their fishing enterprise. Complainants mother, Evelyn Geram,[5] arrived shortly thereafter. Mother and
daughter could only cry as the latter related the incident to the former.
Complainant and her mother subsequently went
to the barangay captain of Monserrat who advised them to
report the matter to the police authorities of Sigaboy, Governor Generoso.After
complainant had narrated the incident to the police, she and her mother
proceeded to the municipal hospital for the physical examination of the former.
Dr. Divina Lopez,[6] a resident physician of the Municipal District
Hospital of Governor Generoso, issued a medical certificate detailing the
result of her examination of complainant, as follows:
FINDINGS:
1) Positive (+) BLOOD CLOTS BOTH ON
LABIA MINORA
2) POSITIVE
(+) RUPTURED HYMEN
3) REDNESS
AROUND THE VULVAR AREA[7]
Prosecution witness Genesis Delgado[8] declared that he saw appellant going inside the
house of complainant on June 9, 1994 at around two oclock in the afternoon. Apparently,
appellant entered through the kitchen door at the rear portion of the house. Two
hours later, appellant went out of the house through the same kitchen door. Delgado
noticed all of these while he was watching television inside their house
located just beside the Gerams residence.
Later, at the rebuttal stage, Enecita[9] dela Cruz Torion,[10] a teacher in Monserrat Elementary School, also
testified that she saw appellant, together with two companions, sitting at the
front porch of the house of the Gerams at about one oclock in the afternoon of
June 9, 1994. Enecita was then on her way from the school which was
located in front of the house of the Gerams.
The defense of appellant is denial and alibi. Aside
from the intrinsic weakness of this shopworn excuse, we are not persuaded to
grant any credence thereto since the facts relied on to make out appellants
story obviously appear too pat as to have clearly been contrived. The only
persons presented to corroborate appellants story are his own parents, despite
the availability of other persons whose lack of relationship to him would not
have engendered suspicion of connivance.
Appellant,[11] who is also a resident of Monserrat, asserted
before the trial court that he was in Davao City at the time of the commission
of the felony. He allegedly went there on June 6, 1994 with his mother to
attend to his sister-in-law who was confined in the Davao Medical Center due to
an incomplete abortion.[12] After sister-in-law was discharged from the
hospital in the afternoon of June 8, they went to the house of Christy, his
sister who was residing at Sasa, Davao City. He stayed in the house and
cleaned it the whole day of June 9. At 4:30 in the morning of June 10, he
and his mother left Davao City for Monserrat, arriving at their house between
8:30 and 9:00 A.M.
Aside from merely repeating the position of
appellant, his father, Raul De Guzman,[13] tried to convince the trial court that he saw
complainant in the afternoon of June 9, 1994.According to this witness, Jovelyn
went to their store on that date to borrow a VHS cassette tape featuring Robo
Vampire. Appellants mother, Violeta De Guzman,[14] also sought to support his story by claiming
that it was her decision to bring appellant along to Davao City so that he
could help minister to her daughter-in-law.
After considering the evidence of both the
prosecution and the defense, the lower court gave credence to the testimony of
Jovelyn and disregarded the defense of denial cum alibi
presented by appellant.
The trial court considered the immediate
revelation made by Jovelyn of the crime committed against her, and her
steadfast efforts to bring her violator to justice, as indicative of the
veracity of her charge. It rejected the defense put up by appellant in
light of the positive identification made by Jovelyn and the categorical
declarations of the other prosecution witnesses placing him within the vicinity
of the locus criminis at the time of the commission of the
crime.
Accordingly, appellant was sentenced to
suffer the penalty of reclusion perpetua, to indemnify Jovelyn in
the amount of P40,000.00, and to pay the costs.[15]
Appellant now pleads for the reversal of the
judgment of the trial court, contending that said court erred in giving
credence to the testimony of Jovelyn and in finding him guilty on the basis
thereof.[16]
Appellant adverts to the fact that
complainant stated in her complaint[17] and in her testimony[18] given during the preliminary investigation
that he committed the crime of rape through the application of odorous
chemicals over her nose and mouth which caused her to sleep. This fact was
not repeated by complainant in the trial court but she merely claimed the crime
was consummated by appellant through force and intimidation. Such
inconsistency, according to appellant, destroys Jovelyns credibility, thus warranting
a reversal of the lower courts judgment of conviction.
The records disclose that at the trial,
counsel for appellant tried to utilize the testimony of complainant given in
the preliminary investigation before Judge Rodolfo A. Castro to impeach her through
statements therein supposedly different from what she gave in court.[19] Alluding to her answer to Judge Castros
questions numbered 28 and 29,[20] appellants counsel asked complainant if she
first reported the rape to one Dioneson Bayno. Complainant duly corrected
that statement and clarified that it was Mauricia and Hugo Bayno whom she first
told about the incident.[21]
However, complainant was never confronted
during the proceedings in the trial court with her answers allegedly given in
the same testimony at the preliminary investigation regarding appellants resort
to sleep-inducing chemicals. In fact, no sub-markings for such particular
answers as exhibits were made in the records of her testimony in the
preliminary investigation, much less offered by the counsel of appellant for
that purpose during the trial of the case.
It
is universally accepted that a witness cannot be impeached by evidence of
contradictory or prior inconsistent statements until the proper foundation or
predicate has been duly laid by the party against whom said witness was called.[22] The American rule on laying the predicate is
embodied in Rule 132 of our own Rules of Court, to wit:
SEC.
13. How witness impeached by evidence of inconsistent statements. -
Before a witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be
related to him, with the circumstances of the times and places and the persons
present, and he must be asked whether he made such statements, and if so,
allowed to explain them. If the statements be in writing they must be
shown to the witness before any question is put to him concerning them.
Although the whole record of the testimony of
complainant at the preliminary examination was offered in evidence by the
defense and admitted by the trial court,[23] complainant cannot now be discredited through
any of her extrajudicial statements which were not brought to her attention
during the trial. Thus, it has been held that granting arguendo the
alleged contradictions, previous statements cannot serve as bases for
impeaching the credibility of a witness unless his attention was first directed
to the discrepancies and he was then given an opportunity to explain them.[24]
In People vs. Resabal,[25] this Court explicitly ruled that the mere
presentation of the prior declarations of a witness without the
same having been read to the witness while he was testifying in court is
insufficient for the desired impeachment of his testimony. As
explained therein, the apparent contradiction between the declarations of the
witness before the former justice of the peace court and those before the then
court of first instance was insufficient to discredit him since he was not
given ample opportunity, by reading to him his declarations before the lower
court, to explain the supposed discrepancy.
The rule which requires a sufficient
foundation to be first laid before introducing evidence of inconsistent
statements of a witness is founded upon common sense and is essential to
protect the character of a witness. His memory is refreshed by the
necessary inquiries, which enables him to explain the statements referred to,
and to show that they were made under a mistake, or that there was no
discrepancy between them and his testimony.[26]
It would be unjust to complainant at this
stage to be declared an incredible witness as a result of the unauthorized
procedure adopted by appellant. It is evidentiarily proscribed to
discredit a witness on the bases of purportedly prior inconsistent statements
which were not called to the attention of that witness during the trial,
although the same are supposedly contained in a document which was merely
offered and admitted in its entirety without the requisite specifications.
Through such a somewhat underhanded recourse,
a party can expediently offer in evidence at the trial the
whole document containing allegedly variant statements and then point out much
later on appeal the supposed contradictory statements which
were not specified, intentionally or otherwise, in the same trial. That sub
silentio gambit would necessarily deprive a witness of the chance to
explain the seeming divergencies, which is the paramount consideration of the
rule mandating the laying of the proper predicate.
Complainant is undoubtedly the person best
suited and mandated by the rule to explain the supposed differences in her
statements. Without such explanation before us, whether plausible or not,
we are left with no basis to evaluate and assess her credibility on the
rationale that it is only when no reasonable explanation is given by a witness
in reconciling his conflicting declarations that he should be deemed impeached.[27] As things stand before us and the court a
quo, therefore, complainants credibility remains unimpeached.
On the foregoing considerations, we confirm
the validity of the doctrine articulated by the Court of Appeals in Villaruel
vs. Bascon[28] that, unless the proper predicate is
laid during the trial by calling the attention of a witness to his alleged
inconsistent statements given outside of his testimony in court and asking him
to explain the contradiction, the supposed inconsistencies cannot be pointed
out on appeal for the purpose of destroying the credibility of the witness. This
pronouncement was actually based upon and in line with the holdings of this
Court in Escosura[29] and People vs. Lim Quingsy.[30]
We now take up the other document relied upon
by appellant, that is, the complaint executed by complainant. A reading of
the transcript of stenographic notes shows that said complaint was never
introduced in evidence for the consideration of the trial court nor shown to
complainant during the trial so that she could explain the alleged
discrepancies in accordance with the foregoing rule. The complaint is not
even included in the folder of exhibits as part of the documents admitted in
evidence by the trial court. It is only attached to the original record of
this case together with the other records of the preliminary investigation
forwarded to the trial court. Under the revision in the 1985 Rules of Criminal
Procedure, those records of the preliminary investigation do not form part of
the record of the case in the Regional Trial Court.[31]
Again, it is undeniable that the proper basis
was not laid for the impeachment of complainant through the statements
contained in her complaint. Coupled with the basic principle that courts
shall consider no evidence which has not been formally offered or whose purpose
has not been specified,[32] the complaint cannot also be taken into
account for impeaching complainant. If appellant was really prepared to
attack complainants credibility based on the statements in her complaint, he
should necessarily have asked complainant about them during the trial, offered
the complaint as his evidence, and specified the purpose for its submission. Appellant
utterly failed in all of these mandatory evidential requirements.
Hence, no impeaching evidence having been
properly brought before it for its consideration during trial, the lower court
was perfectly justified in disregarding the supposed inconsistent statements of
complainant in her complaint and her testimony during the preliminary
investigation. Her testimony at the trial, therefore, stands unassailed
and entitled to full credit, together with the corroboration afforded thereto
by the testimonies of the other prosecution witnesses, in stark contrast to the
effete and puerile defense offered by appellant.
WHEREFORE,
the judgment of the court a quo is hereby AFFIRMED,
with the MODIFICATION that the indemnity to be paid by
accused-appellant Winston de Guzman is increased to P50,000.00 in
accordance with the present case law thereon.[14]”
H.2.
Calling an Adverse Party as Witness; Effect Thereof
“Petitioner contends that her case was unduly
prejudiced by the RTCs treatment of the respondents testimony as adverse
witness during cross-examination by his own counsel as part of her evidence.
Petitioner argues that the adverse witness testimony elicited during
cross-examination should not be considered as evidence of the calling party.
She contends that the examination of respondent as adverse witness did not make
him her witness and she is not bound by his testimony, particularly during
cross-examination by his own counsel.[29] In
particular, the petitioner avers that the following testimony of the respondent
as adverse witness should not be considered as her evidence:
(11.a) That RESPONDENT-Appellee became owner
of the HAGONOY LUMBER business when he bought the same from Chua Sioc Huan
through a Deed of Sale dated August 1, 1990 (EXH.H);
(11.b) That the HAGONOY LUMBER, on the other
hand, was acquired by the sister Chua Sioc Huan, by virtue of Extrajudicial
Partition and Renunciation of Hereditary Rights in favor of a Co-Heir (EXH. I);
(11.c) That the 3 lots on which the
HAGONOY LUMBER business is located were acquired by Lu Pieng from
the Santos family under the Deed of Absolute Sale (EXH. J); that Lu
Pieng sold the Lots to Chua Suy Lu in 1976 (EXHS. K, L, & M.); that Chua
Siok Huan eventually became owner of the 3 Lots; and in 1989 Chua Sioc Huan
sold them to RESPONDENT-Appellee (EXHS. Q and P); that after he acquired the 3
Lots, he has not sold them to anyone and he is the owner of the lots.[30]
We do not agree that petitioners case was
prejudiced by the RTCs treatment of the respondents testimony during
cross-examination as her evidence.
If there was an error committed by the RTC in
ascribing to the petitioner the respondents testimony as adverse witness during
cross-examination by his own counsel, it constitute a harmless error which
would not, in any way, change the result of the case.
In the first place, the delineation of a
piece of evidence as part of the evidence of one party or the other is only
significant in determining whether the party on whose shoulders lies the burden
of proof was able to meet the quantum of evidence needed to discharge the
burden. In civil cases, that burden devolves upon the plaintiff who must
establish her case by preponderance of evidence. The rule is that the plaintiff
must rely on the strength of his own evidence and not upon the weakness of the
defendants evidence. Thus,
it barely matters who with a piece of evidence is credited. In the end, the
court will have to consider the entirety of the evidence presented by both
parties. Preponderance of evidence is then determined by considering all
the facts and circumstances of the case, culled from the evidence, regardless
of who actually presented it.[31]
That the witness is the adverse party
does not necessarily mean that the calling party will not be bound by the
formers testimony. The fact remains that it was at his instance that his
adversary was put on the witness stand. Unlike an ordinary witness, the
calling party may impeach an adverse witness in all respects as if he had
been called by the adverse party,[32] except by
evidence of his bad character.[33] Under a
rule permitting the impeachment of an adverse witness, although the calling
party does not vouch for the witness veracity, he is nonetheless bound by his
testimony if it is not contradicted or remains unrebutted.[34]
A party who calls his adversary as a witness
is, therefore, not bound by the latters testimony only in the sense that he may
contradict him by introducing other evidence to prove a state of facts contrary
to what the witness testifies on.[35] A rule that
provides that the party calling an adverse witness shall not be bound by his
testimony does not mean that such testimony may not be given its proper weight,
but merely that the calling party shall not be precluded from rebutting his testimony
or from impeaching him.[36] This, the
petitioner failed to do.”[15]
I.
Section 14, Rule 132. EVIDENCE OF GOOD CHARACTER OF WITNESS. –
Evidence of the good character of a witness is not admissible
until such character has been impeached.
- But
a study in contrast is the rule on Character Evidence involving not an ordinary
witness but the ACCUSED himself, thus:
Character evidence was discussed in full in
the case of PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
NOEL LEE, accused-appellant[16].
“Character evidence is governed by Section
51, Rule 130 of the Revised Rules on Evidence, viz:
Section 51. Character evidence not generally admissible; exceptions:--
(a) In Criminal Cases:
(1) The accused may prove his good moral
character which is pertinent to the moral trait involved in the offense
charged.
(2) Unless in rebuttal, the prosecution
may not prove his bad moral character which is pertinent to the moral trait
involved in the offense charged.
(3) The good or bad moral character of
the offended party may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense charged.
x x x x x x x x x.
Character is
defined to be the possession by a person of certain qualities of mind and
morals, distinguishing him from others. It is the opinion generally entertained
of a person derived from the common report of the people who are acquainted
with him; his reputation.[32] Good moral character includes all the elements essential to make
up such a character; among these are common honesty and veracity, especially in
all professional intercourse; a character that measures up as good among people
of the community in which the person lives, or that is up to the standard of
the average citizen; that status which attaches to a man of good behavior and
upright conduct.[33]
The rule
is that the character or reputation of a party is regarded as legally
irrelevant in determining a controversy, so that evidence relating thereto is
not admissible. Ordinarily, if the issues in the case were allowed to be
influenced by evidence of the character or reputation of the parties, the trial
would be apt to have the aspects of a popularity contest rather than a factual
inquiry into the merits of the case. After all, the business of the court is to
try the case, and not the man; and a very bad man may have a righteous cause.[34] There are exceptions to this rule however and
Section 51, Rule 130 gives the exceptions in both criminal and civil cases.
In
criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the
accused may prove his good moral character which is pertinent to the moral
trait involved in the offense charged. When the accused presents proof of his
good moral character, this strengthens the presumption of innocence, and where
good character and reputation are established, an inference arises that the
accused did not commit the crime charged. This view proceeds from the theory
that a person of good character and high reputation is not likely to have
committed the act charged against him.[35] Sub-paragraph 2 provides that the prosecution
may not prove the bad moral character of the accused except only in rebuttal
and when such evidence is pertinent to the moral trait involved in the offense
charged. This is intended to avoid unfair prejudice to the accused who
might otherwise be convicted not because he is guilty but because he is a person
of bad character.[36] The offering of character evidence on his
behalf is a privilege of the defendant, and the prosecution cannot comment on
the failure of the defendant to produce such evidence.[37] Once the defendant raises the issue of his
good character, the prosecution may, in rebuttal, offer evidence of the
defendants bad character. Otherwise, a defendant, secure from refutation, would
have a license to unscrupulously impose a false character upon the tribunal.[38]
Both sub-paragraphs
(1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.[39] And this evidence must be pertinent to the
moral trait involved in the offense charged, meaning, that the character
evidence must be relevant and germane to the kind of the act charged,[40] e.g., on a charge of rape, character
for chastity; on a charge of assault, character for peacefulness or violence;
on a charge for embezzlement, character for honesty and integrity.[41] Sub-paragraph (3) of Section 51 of the said
Rule refers to the character of the offended party.[42] Character evidence, whether good or bad, of
the offended party may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense charged. Such evidence
is most commonly offered to support a claim of self-defense in an assault or
homicide case or a claim of consent in a rape case.[43]
In the
Philippine setting, proof of the moral character of the offended party is
applied with frequency in sex offenses and homicide.[44] In rape and acts of lasciviousness or in any
prosecution involving an unchaste act perpetrated by a man against a woman
where the willingness of a woman is material, the womans character as to her
chastity is admissible to show whether or not she consented to the mans act.[45] The exception to this is when the womans consent
is immaterial such as in statutory rape[46] or rape with violence or intimidation.[47] In the crimes of qualified seduction[48] or consented abduction,[49]the offended party must be a virgin, which is
presumed if she is unmarried and of good reputation,[50] or a virtuous woman of good reputation.[51] The crime of simple seduction involves the
seduction of a woman who is single or a widow of good reputation, over twelve
but under eighteen years of age x x x.[52] The burden of proof that the complainant is a
woman of good reputation lies in the prosecution, and the accused may introduce
evidence that the complainant is a woman of bad reputation.[53]
In
homicide cases, a pertinent character trait of the victim is admissible in two
situations: (1) as evidence of the deceaseds aggression; and (2) as evidence of
the state of mind of the accused.[54] The pugnacious, quarrelsome or trouble-seeking
character of the deceased or his calmness, gentleness and peaceful nature, as
the case may be, is relevant in determining whether the deceased or the accused
was the aggressor.[55] When the evidence tends to prove self-defense,
the known violent character of the deceased is also admissible to show that it
produced a reasonable belief of imminent danger in the mind of the accused and
a justifiable conviction that a prompt defensive action was necessary.[56]
In the
instant case, proof of the bad moral character of the victim is irrelevant to
determine the probability or improbability of his killing. Accused-appellant has
not alleged that the victim was the aggressor or that the killing was made in
self-defense. There is no connection between the deceaseds drug addiction and
thievery with his violent death in the hands of accused-appellant. In light of
the positive eyewitness testimony, the claim that because of the victims bad
character he could have been killed by any one of those from whom he had
stolen, is pure and simple speculation.
Moreover,
proof of the victims bad moral character is not necessary in cases of murder
committed with treachery and premeditation. In People v. Soliman,[57] a murder case, the defense tried to prove the
violent, quarrelsome or provocative character of the deceased. Upon objection
of the prosecution, the trial court disallowed the same. The Supreme Court
held:
x
x x While good or bad moral character may be availed of as an aid to determine
the probability or improbability of the commission of an offense (Section 15,
Rule 123),[58] such is not necessary in the crime of
murder where the killing is committed through treachery or premeditation. The
proof of such character may only be allowed in homicide cases to show that it
has produced a reasonable belief of imminent danger in the mind of the accused
and a justifiable conviction that a prompt defensive action was necessary
(Moran, Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule
does not apply to cases of murder.[59]”
[1] See p. 153 EVIDENCE Volume VII Part II
1997 Edition by Francisco
[2] Id.
[3] P.157, Id.
[4] Pp. 158 to 161, Evidence by
Francisco, Ibid.
[5] Sec. 3, Rule 132, Rules on Evidence
[6] Section 23, Rule on Examination of
Child Witness
[7] Section 25 [f], Ibid.
[8] See p. 213, EVIDENCE by
Francisco, Ibid.
[9] Ibid
[10] Ibid
[11] Section 13, Rule 132
[12] 98 C.J.S. 237-238
[13] Sec. 9, Rule 132, Rules of Court
[14] [G.R. No. 122740. March 30, 1998] PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, vs. WINSTON DE GUZMAN, accused-appellant.
[15] Concepcion Chua Gaw v. Suy Ben Chua and
Felisa Chua, G.R. No. 160855, April 16, 2008
[16] [G.R. No.
139070. May 29, 2002]
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