Right against self-incrimination
He shall have the right to remain silent and to counsel, and to be
- Mentioned in Sec. 20, Art. IV of the 1973 Constitution is accorded to
every person who gives evidence whether voluntarily or under
compulsion of subpoena, in any civil, crim, or admin proceeding.
- The right is NOT to be compelled to be a witness against himself.
FIRST SENTENCE of Sec. 20: prescribes an option of refusal to answer
incriminating questions and not a prohibition of inquiry. Secures to a witness,
whether a party or not, the right to refuse to answer any particular
incriminatory question. It also does not impose on the judge, or officer
presiding over trial, hearing or investigation, any affirmative obligation to
advise a witness of his right against self-incrimination.
- The right can be claimed only when the specific question,
incriminatory in character, is actually put to the witness. It cannot be
claimed at any other time.
- Does not give a witness the right to disregard a subpoena, to decline
to appear before the court at the time appointed, or to refuse to
testify altogether.
- It is a right that a witness knows or should know, in accordance with
the well-known axiom that everyone is presumed to know the law,
and its ignorance excuses no one.
- Neither the judge nor the witness can be expected to know in
advance the character or effect of a question to put to the latter.
NOTE: the right against self-incrimination is not self-executing or
automatically operational. It must be claimed. If not claimed by or in behalf of
the witness, the protection does not come into play. The right may be
WAIVED, expressly or impliedly, as by failure to claim at the appropriate
time.
Right in custodial interrogation
- Applies to persons under investigation for the commission of an
offense (ie suspects) under investigation by police authorities and
this is what makes these rights different from that embodied in the
first sentence. (the first one applying to ANY person testifying in any
proceeding, civil, crim, or admin)
- Avowedly derived from the decision in Miranda v Arizona (US SC
decision)
Sec. 20 states that whenever any person is under investigation for the
commission of an offense:
1.
informed of each right
2. Nor force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him
3. Any confession obtained in violation of these rights shall be
inadmissible in evidence.
CJ Warren (in Miranda): summarized the procedural safeguards laid down for
a person in police custody being regarded as the commencement of an
adversary proceeding against the suspect:
o He must be warned prior to questioning that he has the right to
remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney, one will be appointed for him
prior to any questioning if he so desires. Opportunity to exercise
those rights must be afforded to him throughout the interrogation.
o After such warnings and such opportunity afforded him, the individual
may knowingly and intelligently waive these rights and agree to
answer or make a statement.
o Unless and until such warnings and waivers are demonstrated by the
prosecution at trial, no evidence obtained as a result of the
interrogation can be used against him.
OBJECTIVE: prohibit ‘incommunicado’ interrogation of individuals in a police-
dominated atmosphere, resulting in self-incriminating statement without full
warnings of constitutional rights. (since after a person is arrested and his
custodial investigation begins, a confrontation arises which at best may be
termed unequal)
Custodial interrogation – questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.
 Not every statement made to the police by a person involved in some
crime is within the scope of the constitutional protection. If not made
under custodial investigation or under investigation for the
commission of an offense, the statement is not protected.
o EX: where a person went to a police precinct and before any
sort of investigation could be initiated, declared that he was
giving himself up for killing an old woman, this statement is
admissible, compliance with the constitutional procedure on
custodial interrogation not being exigible under the
circumstances.
Rights of defendant in criminal case as regards giving of testimony
- A defendant on trial or under preliminary investigation is not under
custodial investigation. His interrogation, if any, had already been
ended at the time of the filing of the criminal case in court or the
public prosecutor’s office.
- Accused in court (or undergoing prelim inv before the public prosec)
possesses the right against self-incrimination
- The accused in a criminal case has other rights in the matter of
giving testimony or refusing to do so. An accused ‘occupies a
different tier of protection from an ordinary witness’.
Under the ROC, in all criminal prosecutions the defendant is entitled:
1. To be exempt from being a witness against himself
2. To testify as witness in his own behalf; but if he offers himself as a
witness he may be cross-examined as any other witness; however,
his neglect or refusal to be a witness shall not in any manner
prejudice or be used against him.
The right of the defendant in a criminal case to be exempt from being a
witness against himself – signifies that he cannot be compelled to testify or
produce evidence in which he is the accused or one of the accused. He
cannot be compelled even by subpoena or other process or order of the
court. He cannot be required to be a witness either for the prosecution, or for
a co-accused or even for himself.
- If he should wish to testify in his own behalf, he may do so. But if he
does testify, then he may be cross-examined as any other witness.
He may be examined as to any matters stated in his direct
examination or connected therewith. He may NOT on cross-
examination refuse to answer any question on the ground that the
answer that he will give, or the evidence he will produce, would have
a tendency to incriminate him for the crime with which he is charged.
- If the defendant be asked a question which might incriminate him,
not for the crime with which he is charged, but for some other crime,
distinct from that which he is accused, he may decline to answer that
specific question.
Rights of a person suspected of having committed a crime and subsequently
charged with its commission in court (in re his testifying or producing
evidence)
1. BEFORE THE CASE IS FILED IN COURT (or with the public prosec,
for prelim inv), but after having been taken into custody or otherwise
deprived of his liberty in some significant way, and on being
interrogated by the police: continuing right to remain silent and to
counsel, and to be informed thereof, not to be subjected to force,
violence threat, intimidation, or any other means which vitiates the
free will; and to have evidence obtained in violation of these rights
rejected
2. AFTER THE CASE IS FILED IN COURT—
a. To refuse to be a witness
b. Not to have any prejudice whatsoever result to him by such
refusal
c. To testify to his own behalf, subject to cross-examination by
the prosecution
d. WHILE TESTIFYING. To refuse to answer a specific
question which tends to incriminate him for some crime other
than that for which he is prosecuted
 The greater danger of the violation of the right of any person against self-
incrimination when the investigation is conducted by the complaining
parties, complaining companies, or complaining employers because
being interested parties, unlike the police agencies who have no
pecuniary or proprietary interest to protect, they may be in their ever
eagerness or zealousness bear heavily on their hapless suspects,
whether employees or not, to give statements under an atmosphere of
moral coercion, undue ascendancy, and undue influence.
o The law requires that disciplinary sanctions may not be imposed on
any employee by his employer until and unless the employee has
been accorded due process (ie, informed of the offenses, opportunity
to explain, etc.)
 Purely mechanical acts, like submitting one’s self to a medical
examination to determine pregnancy, to extract a sample from the body
for the purpose of a medical evaluation to test the presence of gonorrhea
which was contracted by the victim of rape, or to expel morphine from the
mouth, and to be photographed, are excluded from the constitutional
protection.
Self-degradation
- Inquest to witness concerning a fact that will degrade his repute is
not allowed unless it be the very fact at issue or to a fact from which
the fact in issue would be presumed.
- The witness will not be compelled to answer such questions when
they are introduced only in order to discredit him, and are not
essential to the merits of the case of the party asking them.
WHARTON: it is important to notice the distinction between the questions in
chief, whose object is to bring out facts important to the maintenance of
public justice, and questions in cross-examination, whose object is merely to
harass a witness.
- A witness may NOT refuse to answer a question as to the fact of his
previous conviction for an offense, for there is no danger that his
answer may subject him to another conviction.
- Where a witness has already been pardoned or that the prosecution
of the crime he committed is already barred by the statute of
limitations, he cannot claim the constitutional privilege.
Order of examination
The order in which an 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
Direct examination – examination-in-chief of a witness by the party
presenting him or her on the facts relevant to the issue
Cross-examination – upon termination of the direct exam, the witness may be
cross-examined by the adverse party on any relevant matter, with sufficient
fullness and freedom to test his or her accuracy and truthfulness and
freedom from interest or bias, or the reverse, and to elicit all important facts
bearing upon the issue.
COMMITTEE NOTES
“on any relevant matter” is intended to clarify that cross-exam may probe
into any subject relevant to the issues in the case, even if not covered by
the direct examination. Cross-exam may go beyond the scope of the direct
and that, by doing so, the party is not making the witness his own. (English
rule/wide-open rule)
Scope-of-direct/American rule: in cross-exam, a witness may be examined
only as to matters stated in the direct exam or anything connected
therewith.
Two arguments that support the wide-open rule:
1. WOR encourages the search for truth by letting parties bring to
light at the outset all the witness knows, while SOD rule
encourages the proponent to control the witness to reveal only
part of the truth and prevents the adversary from setting things
right
2. WOR is easy to administer while the SOD is troublesome and
perhaps unworkable because of its imprecision. The SOD rule
could be interpreted in at least 6 different ways, and this
vagueness surely encourages “pettifogging objections”, it also
introduced the risk of reversal for trivial reasons.
Re-direct examination – after cross of the witness, he or she may be re-
examined by the party calling him or her, to explain or supplement his or her
answers given during the cross. Questions on matters not dealt with during
the cross may be allowed by the court in its discretion.
Re-cross-examination – upon the conclusion of the re-direct exam, the
adverse party may re-cross-examine the witness on matters stated in his or
her re-direct examination, and also on such other matters as may be allowed
by the court in its discretion.
Recalling witness – after the examination of a witness by both sides has
been concluded the witness cannot be recalled without leave of the court.
The court will grant or withhold leave in its discretion, as the interests of
justice may require.
WIGMORE: an essential part of all testimony is the laying before the tribunal
the witness’s results of his Observation and his Recollection. Its prime and
essential virtue consists in accurately reproducing and expressing the actual
and sincere Recollection.
- While Sec. 4, Rule 132 serves as the prototype for examination of a
witness, the court has discretion to relax the rules since the order of
introducing evidence is a mere rule of practice that can be varied in
the exercise of sound judicial discretion.
- GR: several counsel will not be allowed to examine or cross-examine
identical witness, yet departures may properly be allowed (esp at
different stages of the exam or if separate parties are affected and
have separate counsel)
Direct examination
- The original exam or examination-in-chief of a witness assumes
worth in the trial of cases. It is one in which the actor (plaintiff) or one
having the burden of proof seek to establish his prima facie case, or
the nonactor (defendant) seeks to bring about an equilibrium in a civil
case, or a reasonable doubt in a criminal case.
- One must produce his whole case at the outset. In the first instance
the actor has the duty to produce facts sufficient to make a case
which will entitle him to a verdict, if no evidence were produced
against him. It should build up a theory of the case and nothing more.
 - Direct exam is the foundation of trial. It is the putting together of
one’s evidence that makes or unmakes a case.
- More cases are won by direct proof than all other phases of a trial
combined. Direct exam may make or break your case.
- While cross-examination is inherently negative in character, direct
exam is generally positive.
- Function of direct exam: building of your own case. Unless you build
a structure of proof that will persuade the court you have a good,
meritorious, honest-to-goodness claim or defense, you have
accomplished nothing constructive.
Direct exam should be sufficiently comprehensive:
1. To prove all elements necessary to merit a favorable verdict
2. To present a picture of the cause of action with clarity, understanding
and interest
3. To present the witnesses to the greatest advantage so as to secure
acceptance of their stories as true by the court
4. To present this story and picture by proper questioning according to
the rules of evidence
5. To present all documentary evidence to prove and to corroborate the
contentions of the trial lawyer
Foundations for direct examination
The foundations for technique in direct exam are two-fold:
1. The first requisite is a firm grasp of the main lines of evidence, and
the place of each line in the unfolding case (ideal lawyer does not
examine from his trial brief, though he uses it to refresh his memory,
he must absorb essentials of the story, so that the evidence is alive
for him and can thus be brought out effortlessly).
2. The second requisite is skill in the use of words, so as to be able to
guide the witness in the right direction without leading him. (choice of
simple words is helpful, verbosity and ponderousness are cardinal
faults in all forms of examination)
 Questions must be properly framed by, and through the guidance of
counsel without leading the witness. Counsel must remain in control but
witness must occupy center stage while counsel is relegated to the
background.
 For the sake of a logical presentation of evidence, the counsel must
adopt a correct sequence for the evidence that will unfold without
sacrificing thoroughness.
 In the process of conducting the original examination, to shun an
objection premised on a leading question, or that which suggests to the
witness the answer which the examining party desires to elicit, it is
appropriate for examiner to preface the query with Who, What, When,
Where, Why, and How so as to bring forth a specific response from the
witness. (a leading question during cross-exam is PERMITTED)
 If the question posed by the proponent of the witness on examination-in-
chief assumes a fact not yet of record thru the testimony of the witness,
or contrary to what he declared on the witness stand, the impending
evidence from the witness can be timely objected to for lack of basis.
 If the immediately foregoing similar nature of the question is propounded
to the witness by the opponent on cross-exam, the proper ground for
objection is misleading. (a misleading question is one which assumes as
true a fact not yet testified to by the witness or contrary to that which he
or she has previously stated, it is NOT allowed).
In a civil case covered by the summary procedure, there is no room for
application of the order of examination of a witness since testimonial
evidence is proscribed and in a crim case within the purview of the summary
procedure, the affidavit submitted by the party or a witness shall constitute as
the direct testimony of the affiant provided it is identified by the affiant on the
witness stand and formally offered later.
 In the absence of a sworn statement from the witness, testimonial
evidence can unfold during the rebuttal or surrebuttal stage, pursuant
to Sec. 15, of the 1991 Revised Rule on Summary Procedure.
o Affidavits submitted shall constitute the direct testimonies of
the witnesses who executed the same
o Witnesses who testified may be subjected to cross, re-direct,
re-cross. Should affiant fail to testify, his affidavit shall not be
considered as competent evidence for the party presenting
the affidavit, BUT the adverse party may utilize the same for
any admissible purpose.
o No witness shall be allowed to testify unless his affidavit was
previously submitted to the court in. (XPN: rebuttal or
surrebuttal)
o Should a party desire to present additional affidavits or
counter-affidavits as part of his direct evidence, he shall so
manifest during the preliminary conference, stating the
purpose thereof. If allowed by the court, the additional shall
be submitted to the court and served on the adverse party
not later than 3 days after the termination of the prelim confe.
o If the additional are presented by the prosecution, the
accused may file his counter-affidavits and serve the same
on the prosecution within 3 days from such service.
  It is the duty of counsel to lay a proper foundation for any testimony
he seeks to elicit from his witness. This will vary as the evid itself
varies.
During direct exam, it is usual to expect intro or presentation of documents or
object evid during the examination-in-chief of a testimonial sponsor for the
purpose of marking, identification, and authentication, if so required, as
prelude to the formal offer.
Republic v Cuenca: failed to introduce either the original or the certified true
copies of the documents during its examination-in-chief for purposes of
identification, marking, authentication and comparison with the copies
furnished the SB and the adverse parties despite knowledge of the existence
and whereabouts.
Republic v Marcos-Manotoc: upheld the denial of the Republic’s
documentary exhibits for violating the best evidence rule.
Cross-examination
- At the conclusion of the direct examination, the witness may be
cross-examined by the adverse party, the purpose of such
examination being the explanation of matters to which the witness
has testified in chief, and the discovery of facts which are favorable
to the examiner.
- Need not indicate the purpose of a particular interrogation; he is
entitled to reasonable latitude even though he is unable to state in
advance the exact facts which may be developed by a reasonable
examination.
- It would be prudent for a cross-examiner to preface the cross-
examination amidst the previous and continuing objection on direct
examination.
o As the petitioner’s exhibits failed to establish the perfection
of the contract of sale, oral testimony cannot take their place
without violating the parole evidence rule. It was irregular for
the trial court to have admitted in evidence testimony to
prove the existence of a contract of sale of a real property
between the parties despite the persistent objection made by
respondent’s counsel as early as the first scheduled hearing.
o The direct testimonies of the witnesses were presented in
affidavit-form where prompt objection to inadmissible
evidence is hardly possible, whereas the direct testimonies
in these cited cases were delivered orally in open court. The
best that counsels could have done under the circumstances
was to preface the cross-examination with objection.
- Counsels should not be blamed and penalized for taking the path of
prudence by choosing to cross-examine the witnesses instead of
keeping mum and letting the inadmissible testimony in affidavit form
pass without knowledge.
- Evidence elicited on cross-examination is regarded as testimony on
the part of the party calling the witness, and not as evidence of the
party cross-examining.
Questions from adverse party’s counsel
- Generally, cross-examination is the function of the counsel and not of
the court.
- The trial court should stay out of it as much as possible, by neither
interfering nor intervening.
- The court may intervene on its own motion under certain
circumstances (eg prevent needless waste of time)
Cross-examination questions from the judge
- Even the judge can cross-examine the witness.
- A trial judge has the right to propound such questions to witnesses
as may be necessary to elicit pertinent facts, to establish the truth,
although some reviewing courts have declared that the practice of so
doing except when absolutely necessary should be discouraged.
- It is the duty of the court to propound such questions to reluctant
witnesses as will strip them of the subterfuges to which they resort to
evade telling the truth.
- The extent of which such examination shall be conducted rests in the
discretion of the judge, the exercise of which will not be controlled
unless abused.
Value of cross-examination
Wellman: Through cross-examination, we will know the opinions of which
side are warped by prejudice or blinded by ignorance, which side has had the
power or opportunity of correct observation. If all witnesses had the honest
and intelligence to come forward and scrupulously follow the letter and spirit
of the oath, to tell the truth, the whole truth and nothing but the truth, and if all
advocates on either side had the necessary experience, combined with
honesty and intelligence, and were similarly sworn to develop the whole truth
and nothing but the truth, there would no occasion for cross-examination. But
as yet no substitute has ever been found for cross-examination as a means
of separating truth from falsehood, and of reducing exaggerated statements
to their true dimensions.
Restrictions
 a.) Waiver
- It can be waived expressly or impliedly by the opponent
- EX: the nonappearance of a party and counsel despite notice of the
hearing operates as a waiver of the right to cross-examine the witness
of the adverse party who testifies. However, there is authority for the
view that where counsel for a party was absent at the opening of the
trial, but appeared before the conclusion of the examination of the
plaintiff’s second witness, he should be permitted to call for cross-
examination of the first witness, whose examination in chief had been
completed.
b.) Relevant
- Evidence is relevant if there is a logical nexus between the factum
probans and the factum probandum.
- Previous rule referred to any matters stated in the direct examination or
connected therewith, new rule is confined to any relevant matter.
- Cross-examination should be restricted to matters which are competent,
material and relevant, and will not be allowed as to matter which is
obviously irrelevant. The rule of relevancy is much more liberally
construed on cross-examination that on direct examination.
- The extent to which cross-examination respecting collateral matters
may go rests almost entirely in the discretion of the trial court, since
from the nature of the case no fixed rule can be devised defining the
right and limiting the extent of irrelevant inquiry which be just or safe in
universal application.
- If the doctrine of conditional admissibility can be explored during direct,
there is no reason to preclude its application during cross provided the
cross-examiner can also justify the tentative evidence extracted during
scrutiny with the ultimate object of the prove, vis-à-vis the good faith
accorded by the court to the cross-examiner’s inquisition.
- The witness can be assayed on cross-examination but the extent has 2
acknowledged schools of thought:
o English rule: where a witness is called to a particular fact, he
becomes a witness for all purposes and may be fully cross-
examined upon all matters material to the issue, the
examination not being confined to the matters inquired about
in the direct.
o American rule: restricts cross-exam to facts and
circumstances which are connected with the matters that
have been stated in the direct exam of the witness. If a party
wishes to examine as to the other matters, he must do so by
calling the witness in his own behalf.
 The fact that other witnesses have testified to certain
matters does not subject a witness to cross-
examination as to such matters, unless he has
testified to them himself.
 Witness may not be cross-examined upon evidence
given during direct but subsequently stricken out.
 If immaterial or irrelevant evidence has not been
stricken out, it is error to refuse cross to facts related
 A witness may not be cross-examined as to a
document not offered in evidence, although there is
authority for the proposition that in exceptional cases
documents may be identified and introduced on
cross-examination.
- The PH adheres to the English rule since the cross-examiner can
confront the witness not only with matters stated in the direct but also
on aspects connected therewith. It assumes wide liberality in judicial
attitude, in conjunction with the doctrine of conditional admissibility.
- There is fidelity to the American rule when the witness on the stand
is accused, an unwilling witness, a hostile witness, or adverse party’s
witness, conditioned upon timeliness of the XPN to the attempt of the
adverse party to surpass the subject matter of the direct.
- The view was advanced that the accused is governed by the English
rule since by occupying the witness stand, he is deemed to have
consented and offered to submit to such inquiry and he must testify
to whatever has legitime bearing upon the question of his guilt.
c.) Default
- Not meant to punish the defendant, but to enforce the prompt filing of
the answer to the complaint. Its existence is justified on the ground
that it is the one final expedient to induce defendant to join issue
upon the allegations tendered by the plaintiff, and to do so without
unnecessary delay.
- In a civil case beyond the context of the summary procedure,
although a party validly declared in default is entitled to notice of
subsequent proceedings, he is deprived of the right to take part in
the trial and cannot subsequently cross-examine the adverse party.
d.) Ex-parte proceeding
- Not proper to allow cross-exam in an ex-parte proceeding.
- Ex-parte proceeding merely means that it is taken or granted at the
instance and for the benefit of one party, and without notice to or
contestation by any party adversely affected.
 e.) Best Evidence and Parol Evidence Rule proponent who is presumed to have
knowledge of its contents,
Foreign ruling: if cross-examination develops the fact that an agreement secondary evidence being available
testified to on direct was in writing, this permits the cross-examiner to invoke in case of its non-production
the BER or the PER and move to strike out all the evidence relating to the it.
by proper motion in the trial court,
and is permitted only upon good
cause shown.

JONES: took cognizance of jurisprudence to the effect that the witness may 2. During the adverse party’s impeachment of the opponent’s witness
not in the first instance, be asked as to the contents of what he has written for on cross either by prior inconsistent statements or contradictory
to do so would violate the rule making the instrument itself the best evidence evidence, Sec. 14, Rule 132 permits inquiry by the cross-examiner
of its contents. on the contents of the document provided the instrument is initially
shown to the witness.
Is the BER or the PER applicable during cross? If so, against whom
- Hence, if the cross-examiner ventures to ask the witness on the
pertinent?
contents of the document, as a prelude to laying the predicate for
WIGMORE: No. When a witness is to be asked on cross as to the terms of a impeachment, it is but logical to expect and allow the response of the
document written or signed by him, the document must be at the time witness to the question albeit it apparently traverses the language of
produced and shown or read aloud to him before he can be asked as to its the original document.
contents; he cannot be asked WON he said such and such things in the - Evidence elicited on cross-examination is regarded as testimony on
document, but the supposed document must first be shown to him. the part of the party calling the witness, and not as evidence of the
party cross-examining.
From Wigmore, it seems that the BER does NOT apply during cross of a
witness relative to the contents of a document: JONES: it does not follow that the original writing must be presented to a
witness being cross-examined in order to be able to ask him if he made a
1. The rule for the production of the original is applicable only to the writing of a certain import. Very often, the BER places a great obstacle in the
proponent of the document. way of effective cross-examination of a slippery and dishonest witness.
a. REGALADO’s comparison of Rule 27, regarding the
production or inspection of documents or things as a mode  In regard to the PER, if an XPN to the general proscription is properly
of discovery in CivPro and Sec. 6, Rule 130 of the Revised pleaded by a party to the suit, or extrinsic evidence is introduced by
Rules on Evidence, concerning the supplementary rule if the the party thereon during direct examination of his witness sans
adverse party has custody of the original, also highlighted objection from the adverse party, it is inconceivable to think that the
that the BER is applicable only to the proponent of the response of the party’s witness to the cross-examination by the
original writing. adverse party on evidence aliunde can be expunged from the record
on the belated invocation by the cross-examiner during cross-
Production of documents under Rule 27 examination of the PER.
Sec. 6, Rule 130
Production of the original is Document is neither assumed to be
procured by mere notice to the favorable to the party in possession
adverse party, and the thereof or that the party seeking its
requirements for such notice must production is not sufficiently
be complied with as a condition informed of the contents of the
precedent for the subsequent same.
introduction of secondary evidence
by the proponent.
Generally, presupposes that the The production of such a document
document to be produced is is in the nature of a mode of
intended as evidence for the discovery and can be sought only