LAW 5 – Court Testimony (Prelim Period)

 Who may practice Law? Rule 138 sec. 1, Rules of Court.

 What are the requirements for admission to the BAR? Rule 138 sec. 2, Rules of
Court.
 Duties of Attorneys - Rule 138 sec. 20, Rules of Court.
 Complaint/Information – defined: - Rule 110 secs. 3 & 4, Rules of Court.

Venue - is the place of trial or geographical location in which an action or

proceeding is to be instituted.

Rule 110 Secs. 10 & 15 – Venue in Criminal Action

Rule 4 – Venue in Civil Action

Venue of Personal Action:
1. Where the plaintiff or any of the principal plaintiffs resides;
2. Where the defendant or any of the principal defendants resides; or
3. In case of the non-resident defendant, the action may be brought in the place
where he may be found.

NOTE: All at the election of the Plaintiff.

Venue of Real Action:
1. If the property is located in the boundaries of two places; File case in either
place at the option of the Plaintiff.
2. When the case involved two properties located in two different places:
a. If the properties are object of the same transaction, file it in any of the two
places; and
b. If they are the subject of two distinct transactions, separate actions should be
filed in each place unless property joined.

Pleadings – are the written statements of the respective claims and defenses of the
parties submitted to the Court for appropriate judgment. It is necessary
to invoke the jurisdiction of the Court.

Section 2. Rule 6. Pleadings allowed:

1. Complaint;
2. Counter-claim;
3. Cross-claim;
4. Third party complaint, (fourth; fifth . . );
5. Complaint-in-intervention;
6. Answer;
7. Reply;
8. Counter-counterclaim; and
9. Counter cross-claim.

NOTE: A MOTION to dismiss is not a pleading.

Complaint – is an initiatory pleading alleging the plaintiff’s cause or causes of

action. It should contain:
1. The name and residences of the plaintiff and defendant;
2. The concise statement of ultimate facts constituting the plaintiff’s cause or
causes of action.

Counter-claim – is any claim which the defending party may have against an
opposing party.
Cross-claim – is any claim of one party against a co-party arising out of the transaction
or occurrence that is the subject matter either of the original action or of the
counterclaim therein.
Third party complaint, (fourth; fifth) – is a claim that defending party may, with leave of
court, filed against a person not a party to the action for:
1. Contribution;
2. Indemnity;
3. Subrogation; or
4. Or any other relief.

Answer – is a responsive pleading in which a defending party may sets forth his
affirmative or negative defenses.
1. Affirmative defense – is not a denial but is one which, if established, will be a
good defense. Ex.: avoidance of the claim.
2. Negative defense – it refers to a specific denial of the material facts or facts
alleged in the pleading of the claimant essential to his cause of action.

Reply – is the response of the plaintiff to the defendant’s answer, the function of which
is to deny the alleged facts.

Counter-counterclaim – is a claim asserted against an original; counterclaimant.

Counter-Crossclaim – is a claim filed against an original cross-claimant.

Rule 7 – Parts of the pleadings:

1. Caption – contains the following:
a. The name of the Court;
b. The title of the action- indicates the name of the parties;
c. The docket number if assigned.
2. The Body. It sets forth:
a. Its designation;
b. The allegations of the party’s claims and defenses;
c. The relief prayed for;
d. The date of the pleading.

NOTE:
1. Every pleading must be signed by the party or counsel representing him, stating
if either case his address which must not be the post office box.
2. Every pleading must be verified and with certification against forum-shopping
(Secs. 4 & 5, Rule 7- ROC).

Where to file criminal complaint or information?

The Complaint/information shall be filed in the (Court) place where the crime was
committed or some of its essential ingredients took place (Rule 110 sec. 10 & 15,
Rules of Court).
The criminal complaint or information is deemed sufficient if: (Sec. 6 Rule 110, Rules of
Court)

1. It states the name of the accused;

2. The designation of the offense given by the statute;
3. The acts or omissions complaint of which constitute an offense;
4. The name of the offended party;
5. The approximate date of the commission of the offense; and
6. The place where the offense was committed.

Complaint – is a sworn written statement charging a person with an offense, subscribed

by the offended party, any peace officer, or other public officer charged with the
enforcement of the law violated.

Information – is an accusation in writing charging a person with an offense, subscribed

by the prosecutor and filed with the Court.
Preliminary investigation – is an inquiry or proceeding to determine whether there is a
sufficient ground to engender a well-founded belief that the crime has been
committed and the respondent is probably guilty thereof, and should be held for trial.

After the court acquired jurisdiction over the parties/accused, the defendant/accused
may file a motion to dismiss (Rule 16, Civil Case; Rule 117, if criminal case, Rules of
Court).

Or the court may issue an order requiring the parties to submit it answer with defenses
(in civil case), in criminal case; an order requiring the accused to submit counter-
affidavit.

Failure of the defendant to submit the same, the plaintiff may file a motion to declare
defendant in default, the same in criminal case if it is covered by the Rule on
Summary Procedure.

Nature and characteristics of PRE-TRIAL

Pre-trial – is a procedural device by which the Court is called upon after the filing of the
last pleading, to compel the parties and their lawyers to appear before it. Pretrial is
mandatory but not jurisdictional.

Purpose of pre-trial:
a. Plea bargaining;
b. Stipulation of fats;
c. Marking of evidence;
d. Waiver of admission to admissibility of evidence;
e. Modification of the order of trial; and
f. Such matters as will promote a fair and expeditious trial of the criminal and civil
aspects of the case.

Non-appearance at the pre-trial conference (criminal case)

Effect – the court may imposed proper sanctions or penalties if counsel for the accused
or the prosecutor failed to appear during pre-trial with no acceptable excuse.

Non-appearance at the preliminary conference (civil case) – Effect:

1. Non-appearance of the complainant to appear during the preliminary

conference without justifiable reason will cause the dismissal of his/case.
2. Non-appearance of the defendant to appear during the preliminary
conference without justifiable reason, the plaintiff may file a motion file declare
defendant in default and the former be allowed to present evidence ex-parte.

In resolving whether the complaint states a cause of action or not, only the facts
alleged in the complaint are considered. The test is whether the court can render a
valid judgment on the complaint based on the facts alleged and the prayer asked for.
Only ultimate facts, not legal conclusions or evidentiary facts, are considered for
purposes of applying the test.

A cause of action is the act or omission by which a party violates a right of

another. A complaint states a cause of action where it contains three essential elements
of a cause of action, namely: (1) the legal right of the plaintiff, (2) the correlative
obligation of the defendant, and (3) the act or omission of the defendant in violation of
said legal right. If these elements are absent, the complaint becomes vulnerable to
dismissal on the ground of failure to state a cause of action.

The mere assertion of a right and claim of an obligation in an initiatory pleading,

whether a Complaint or Petition, without identifying the basis or source thereof, is
merely a conclusion of fact and law. A pleading should state the ultimate facts essential
to the rights of action or defense asserted, as distinguished from mere conclusions of
fact or conclusions of law.

CERTIFICATION AGAINST FORUM SHOPPING

It is settled that with respect to the contents of the certification against forum
shopping, the rule of substantial compliance may be availed of. This is because the
requirement of strict compliance with the provisions regarding the certification of non-
forum shopping merely underscores its mandatory nature in that the certification
cannot be altogether dispensed with or its requirements completely disregarded.

MODE OF SERVICE OF SUMMONS

Under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service
and filing is the general rule, and resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or filing is mandatory. Only
when personal service or filing is not practicable may resort to other modes be had,
which must then be accompanied by a written explanation as to why personal service
or filing was not practicable to begin with.

Indeed, when a court has no jurisdiction over the subject matter, the only power it
has is to dismiss the action( can be done motu proprio).
Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the
coercive power of legal processes exerted over his person, or his voluntary appearance
in court. As a general proposition, one who seeks an affirmative relief is deemed to
have submitted to the jurisdiction of the court. It is by reason of this rule that we have
had occasion to declare that the filing of motions to admit answer, for additional time to
file answer, for reconsideration of a default judgment, and to lift order of default with
motion for reconsideration, is considered voluntary submission to the court’s
jurisdiction. This, however, is tempered by the concept of conditional appearance, such
that a party who makes a special appearance to challenge, among others, the court’s
jurisdiction over his person cannot be considered to have submitted to its authority.
( Correlate this with PCIBANK vs. Spouses DY Hong PI)

Determination of the existence of probable cause is either an executive function or

a judicial function.

The Trial Court is mandated to immediately dismiss the case upon finding that no
probable cause exists; or to issue warrant of arrest and after having evaluated the
resolution of the Fiscal and supporting information.

The implementation of a warrant of arrest cannot be deferred pending resolution of

the Petition for Review before the DOJ as to the finding of probable cause (to indict)
(Enrique V. Viudez II vs. CA, et al.,G.R. No. 152889, June 5, 2009.

Speedy Trial
- child abuse cases to take precedence over all other cases before the Court
except election and habeas corpus cases. Trial to commence 3 days from date
accused is arraigned, and no postponement of initial hearing.
- Mandatory continuous trial for 60 days from commencement. Judgment rendered
within 30 days from submission for decision.

Remedy against denial of the Right to Speedy Trial

1. Motion to Dismiss – the dismissal would be tantamount to an acquittal
2. Where the Fiscal, without good cause, secure postponement of trial beyond a
reasonable period of time, over the objection of the accused.

LAW 5- MIDTERM PERIOD

RULE 132, Rules of Court
Presentation of evidence
Examination of Witness
Witness should be examined in open court
The answer of the witness should be given orally, except:
a. when he is incapacitated to speak
b. when the question calls for a different mode of answer

NB: The main & essential purpose of requiring a witness to appear and testify orally at
the trial is to secure for the adverse party the opportunity of cross-examination.

Proceedings on examination of witness should be recorded

Rights and obligations of witness
Obligations of witness – must answer questions although his answer may tend to
establish a claim against him,
Rights of witness:
a. To be protected from irrelevant, improper, or insulting questions and from
harsh or insulting demeanor;
b. Not to be detained longer than the interest of justice;
c. Not to be examined except only as to matters pertinent to the issue;
 d. Not to give answer which will tend to subject him to penalty for an
offense unless otherwise provided by law;
e. Not to give answer which will tend to degrade his reputation, unless it be
to the very fact in issue, he must answer to the fact of his previous final
conviction for an offense.

The privilege of a witness against self-incrimination is:

a. strictly personal;
b. applies only to testimonial evidence.

Order of Examination of Individual Witness

a. Direct examination by the proponent – the witness is made to testify to all facts
that may support the case of the party calling him;
b. Cross-examination by the opponent – wherein the matter disclosed in the direct
examination are tested. It must be confined to the matters inquired about in the
direct examination;
c. Re-direct examination by the proponent – with the view to refuting the cross-
examination are tested; and
d. Re-cross-examination by the opponent – to retest the matters disclosed in the
direct examination. Its scope is limited to matters taken during re-direct
examination.

In presentation of evidence (witness) it must be:

a. Systematic;
b. Orderly; and
c. Thorough.

Recalling witness. Witness may be recalled but with leave of court.

After the witness has left the stand, his recall may be necessary either:
- Because of inadvertence or from other causes; or
- Counsel has failed to ask him on some important facts; or failed to lay the proper
foundation; or
- To make him correct, explain or clarify his prior testimony.

NOTE: The prosecution is entitled to call on witnesses not listed in the information
(Pp. vs. Realon, 99 SCRA 422).

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Leading and Misleading Questions

Misleading Questions – 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.

Leading Questions – those which suggest to the witness the answer which the
examining party desires. It is not allowed except:
a. On cross-examination;
b. On preliminary matters;
c. When the witness is ignorant, or child of tender years, or is of feeble minded, or
a deaf-mute;
d. Unwilling or hostile witness;
e. Witness who is an adverse party or an officer, director or a managing agent of
private or public corporation.

Types of Leading Questions

a. Those merely leading the witness to the desired answer. Eg. Did D stop at the
stop sign?
 b. Questions which strongly suggest a large volume of facts permitting the witness
to affirm them with a simple “yes” answer.

Impeachment of Adverse party’s witness.

To “impeach” the witness – means to discredit witness’ credibility.

Modes of impeachment:
a. By contradictory statements;
b. Evidence that the witness’ general reputation for truth, honesty or integrity is
bad;
c. Evidence that he made previous statements inconsistent with his present
testimony.

Methods of attacking credibility:

- Demonstrating poor character of truthfulness;
- Establishing bias or interest;
- Establishing prior inconsistent statements.

Note: A party may not impeach his own witness.

Exclusion or separation of witnesses on trial. While the witness is under
examination, all witnesses not yet testified may be excluded. Such act is
discretionary on the part of the Court.

When witness may refer to memorandum:

Two well-known principle relating tom refreshing of memory of witness:

a. Revival of present memory – the witness may be permitted to refresh his
memory by referring to writing or anything else.
b. Past recollection record – a witness may testify from a written memorandum
(under oath), though he retains no recollection of a particular facts.

The adverse party has the right to inspect writing shown to the witness.
Classes of documents:
a. Public documents;
b. Private documents.

A document is a “deed”, instrument or other duly authorized paper by which something

is prove, evidence or set forth.

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Public documents are: (defined)

a. Written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or
foreign country;
b. Documents acknowledge before the notary public EXCEPT last will and
testaments;
c. Public records, kept in the Philippines, of private documents required by law to
be entered therein.

ALL OTHER WRITINGS ARE PRIVATE.

Private documents – is every deed or instrument executed by a private person, without
the intervention of the notary public or of other person legally authorized by which
document some deposition or agreement is proved, evidence or set forth.

Proof of private document. Needs authentication before it can be admitted in

evidence.
Modes of authenticating private documents:
a. By any one who saw the writing executed;
 b. By evidence of the genuiness of the handwriting of the maker;
c. By the subscribing witness; and
d. Authentication by contents.

Types of authentication:
a. By testimony;
b. Chain of custody; and
c. By age (Ancient Document, Sec. 21).

Judicial Record.
Judicial record may be impeached by:
1. Want of jurisdiction in the court or judicial officer; or
2. Of collusion between parties; or
3. Fraud in the party offering the record, in respect to the proceedings.

OFFER AND OBJECTION

Offer of evidence. The Court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specific.
Time to offer – it must be made at the stage of the trial.

When to make offer

a. Testimony of witness – made at the time the witness is called to witness stand.
b. Documentary and object evidence – after the presentation of a party’s
testimonial evidence.

OBJECTION TO EVIDENCE

Objection to evidence
a. Offered orally - must be made immediately after the offer is made.
b. Questions propounded in the course of oral examination of a witness – shall be
made as soon as the grounds therefore shall become apparent.
c. Evidence offered in writing – within 3 days after notice of offer unless different
period is allowed by court.

The Judge is required to rule on the admissibility of evidence:

a. Before trial;
b. During trial before the witness answers the question or tangible evidence is
received in evidence; and
c. During oral argument.
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PROCEDURE DURING COURT TRIAL

Entrance of the JUDGE

Interpreter - - - Please all stand. By the Order of the Honorable Judge, the Court is now
in session. Everybody is enjoin to observed silence. Please remain standing for
the ECUMENICAL PRAYER FOR THE COURT.

“Almighty GOD, we stand in your Holy Presence as our

Supreme Judge. We humbly beseech you to bless and
inspire us so that what we think, say & do, will be in
accordance with Your Will. Enlightened our minds,
strengthen our spirit & fill our hearts with fraternal love,
wisdom and understanding, so that we can be an effective
channels of truth, justice and peace. In our proceedings
 today, guide us in the path of righteousness for the
fulfilment of you greater glory. Amen.”

JUDGE . . . Please sit down

. . . Call the case now
Interpreter . . . Criminal Case No. _____, People of the Philippines, Plaintiffs, vs. Juan
Dela Cruz, Accused. For Frustrated Murder and for initial presentation of
evidence for the prosecution, Your Honor.
JUDGE . . . Appearances?
Prosecutions . . . Prosecutor . . . . . Counsel for the Plaintiffs, we are ready Your Honor.
Atty. . . . . Counsel for the Accused, we are ready Your Honor.
JUDGE . . . Evidence?
Prosecution . . Yes, Your Honor. I would like to call on to the witness stand the first
witness for the Prosecution in the person of . . . . . . . . . . and he/she may be
swear Your Honor.
JUDGE . . . Witness to the witness stand & swear the witness.
Interpreter . . . Yes, Your Honor. Please raise your right hand. Will you swear to tell the
truth nothing but the whole truth as you testify in this case?
Witness . . . . Yes, Ma’am/Sir.
Interpreter . . . Please state your name, address and other personal circumstances.
Pangalan; edad; civil status; residence; trabaho. Fiscal/Atty., your witness
is now ready.
Fiscal/Atty. . . . Your Honor, I would like to formally offer the testimony of this witness
to prove that at the time of the commission of this crime, he was in the
barangay hall of Barangay______ attended a disco party. That at the time
of the incident, he saw the accused as the one who shot/stabbed the victim
using . . . but fortunately the victim was not fatally wounded and was
survived. He will also testify of other related matters in relation to this case.
May I proceed, Your Honor.
JUDGE . . . Proceed.
Fiscal/Atty. . . . Mr/Ms. Witness, have you remember having executed a Judicial
Affidavit in relation to this case?
Witness . . . . Yes, Ma’am/Sir.
Fiscal/Atty. . . If that Judicial Affidavit will be shown to you, can you identify it?
Witness . . . . Yes, Ma’am/Sir.
Fiscal/Atty. . . I have here in my position the alleged Judicial Affidavit, is this the
Judicial Affidavit you are referring to?
Interpreter . . . the counsel is handling the said documents to the witness and the
witness is trying to scrutinize it

Witness . . . . Yes, Ma’am/Sir.

Fiscal/Atty. . .This documents are consisting of 3 pages, in the last page thereof
appearing the name ______, whose name is this?
Witness . . . . That is my name.
Fiscal/Atty. . . above the name __________ appearing the signature, whose signature
is this?
Witness . . . . That is my signature Sir/Ma’am.
Fiscal/Atty. . . Your Honor, I would like pray that the Judicial Affidavit of this witness
Your Honor, which will serve as his direct testimony, be marked as Exhibit
“A”, for the prosecution.
JUDGE . . . Marked it.
Fiscal/Atty. . .the second page thereof be marked as Exhibit “A-1”, third page as
Exhibit “A-2” and the name and signature of the witness be encircled and
marked as Exhibit “A-2-A”.
JUDGE . . . Marked it.
Fiscal/Atty. . . Thats all for the witness Your Honor.
JUDGE . . . Any CROSS?
Atty. (Deferense Counsel) . . . . Yes Your Honor. May I proceed Your Honor?
JUDGE . . . Proceed.
Defense counsel conducting the Cross-Examination to the witness. . .