5.

9 Special Problems on Cross

The goal of the opposing witnesses is to defeat the purposes of your cross-examination. So
its important to be familiar with their nature and how to deal with them.

Rehearsed Witnesses
-

They have a well-rehearsed testimony that is carefully prepared by the opposing

counsel, prosecutor or the police.

Your GOAL : Prove that his story is pre-fabricated and unworthy of court's belief.
You have to look for CLUES like:
Memorized details
Would NOT ordinarily be remembered
Would normally be recalled
Verbatim repetition (especially applicable on a young witness)
Use of unnatural vocabulary
Too similar testimonies among witnesses
Action Plan:
Inquire whom the witness talked to before testifying. How many conversations
took place? Who were present during the conversations?

Explaining and Arguing Witnesses

-

They always want to expound on every point and argue with you on everything.

Your GOAL : Control the witness.

You often see them:
Arguing with you on every question
Answer your questions with questions
Action Plan:
i.
ii.
iii.

Ask particularly and concisely

Cut him off with your next question
Ask for courts assistance to strike out the unimportant part of his testimony;
admonish him to give a responsive answer

Evasive Witnesses
-

They had no difficulty answering during the direct-examination but they become
evasive on cross-examination

Your GOAL : Create a horrible impression on him through his evasive answers.

How evasive witnesses behave:

Repeat your questions
Answer questions slowly
Always respond with, I dont know, I cant remember, etc.
Action Plan:
i.
ii.
iii.
iv.
v.
vi.
vii.

Dont squeeze out better answers from them

Extract as many I dont know, I cant remember, answers
Demand clear and direct answers
Rapidly fire question
Ask Judge to instruct him to answer directly
Give him the Final Blow by emphasizing on his evasiveness
Dismiss him summarily

Positive Witnesses
-

They always make positive testimonies through affirmative declaration of facts.

How evasive witnesses behave:

Refuse to make any statement other than in positive terms
Action Plan:

i.

Encourage them to make positive statements on matters where there can

be no positive

ii.

Induce contradictory statements.

Stubborn Witnesses
-

They are always hostile towards you and firm on their stand.

Two Types:
He holds back facts
He takes a position and refuses to retreat
Action Plan:
i.

Ask a few questions until you get what you need

ii.

Make his position appear ridiculous

Contrary or Unruly Witnesses

-

They harbor deep hostility toward your client.

Your GOAL : Impeach his credibility.

Action Plan:
i.
ii.
iii.

Turn the the hostility toward your client against you

Do not quarrel with him
Ask the court to warn him to behave

Identification Witnesses
-

He always positively identifies the accused.

Your GOAL : Demonstrate that courtroom identification as worthless.

What to expect:
They impress sincerity, honesty and confidence to the court
Action Plan:

i.

Point out that identification was prepared because of the obvious courtroom
position of the accused

ii.

Point out conflicts and discrepancies on the testimonies of several witnesses

iii.

Establish flaws in the identification of the witness

Poor memory

Photographed image shown to the witness was impressed on his mind

Absence of police lineup or flaws thereof

Influence of news from TV, radio and newspapers

Polices Influence

Witness to intoxication

He attests to the intoxication of the accused at the time the crime was
committed.

Your GOAL : Discredit the witness

Elicit

the following:
Familiarity with the accused
Knowledge of intoxication
Presence at the time of drinking

Action Plan:
i.
Prove he does not know the accused too well
ii.
Prove he does not know enough about intoxication
iii.
Prove he himself might be intoxicated

Witness to defendants confession

Your GOAL : Prove that waiver of rights was not done with full grasp of the facts and
effects
The Approach:
Inquiry on all the circumstances surrounding the confession
Action Plan:
i.
Prove that he was not advised of his rights
ii.
Prove that accused was forced to admitting

Very old or young witnesses

-

They have the courts sympathy.

Your GOAL : Prove that he was coached

The Two Types:
Rehearsed child
He was coached by the parents or counsel repeatedly
Respected elderly
He makes silly remarks at times but never make fun of him
Action Plan:
i.
Object to childs testimony
If the counsel fails to lay the predicate
ii.

Show the childs approval of white lies

Lead him to a line of questioning that reveals his approval of saying
untruthful statements in certain circumstances

iii.

Show the difference between rehearsed and the unrehearsed parts

Begin by asking unimportant matters until he gains confidence
Then probe on unexpected matters that reveal the memorized parts of
the testimony

iv.

Lead the child to exaggeration

Use his imagination to elicit a ridiculous testimony

v.

Treat older persons tenderly

Be ever courteous and polite up to his dismissal

Female Witness
-

She appeals to the emotion.

Your GOAL : Get direct answers

How she behaves:
She becomes highly emotional, angry or upset
Action Plan:

i.

Dont be condescending or solicitous

Never alter your manner despite her emotions

ii.

Remain unmoved
She becomes surprised or hopeless when she sees your stoic
rejection, thus, susceptible to penetration

iii.

Use her emotions to elicit answers

Counter her evasiveness with continuous questioning until you get
direct answers

Witness/Complainants to sex crimes

-

Shes more emotional than an ordinary female witness.

Your GOAL : Prove that accused is the wronged party

Two Types:
One who tries to brazen her way out of the compromising situation
One who seeks revenge
She may have been rejected by the accused
She may be vengeful of all men, not just the accused
Action Plan:
i.

Prove lack of force

Relationship with the accused
Absence of physical indication of force

ii.

Prove presence of opportunity to escape

Stress the opportunity of resistance or outcry

iii.

Prove that complaint is an afterthought

Interval between the attack and the reporting of the crime

Police Officers and Officials

-

They determine the motive behind your questions before they answer

Your GOAL : Impress the court by showing inconsistencies in the investigation .

The nature of a Police Officer Witness:
They are careless of the form and manner of statements made to them
Action Plan:

i.
ii.
iii.

Familiarize yourself with criminal investigations

Taint the credibility of the investigation
Use the Jump-Around Technique
Rapid questioning

iv.

Control the parameters of their testimony

Focus what they failed to see or do
Avoid disclosure of your clients previous criminal records

Stool Pigeon/Accomplice-Witness
Your GOAL : Discredit the witness.
Give emphasis on:
Dates
Places
Stories
Action Plan:
i.
ii.

Develop the circumstances around defendants implication by the witness

Show contradictory statements
Prove the weakness of defendant and accomplices relationship

Expert Witness
-

An expert from a specific field or a courtroom veteran

Your GOAL : Prove his inability, bias or pecuniary interest

Preparation for the Cross:
Ask assistance from your own expert witness in preparing your questions
Before trial, dissect the reports made by the expert witness
Investigate on the methods he used in performing tests, etc.
Read about the latest development in his field

Action Plan:
i.
ii.
iii.

Ask direct questions

Do not allow him to expand on his remarks
Prove that he deviated from the customary practice or principles on his
field
Show contrary statement from another expert in his field
Prove that he is a professional witness
One who gets paid by the government or the complainant

Medico-Legal Expert Witness

-

Particularly vital in homicide cases

Your GOAL : Prove that autopsy did not exactly ascertain the time of death
Preparation:
Familiarize yourself with tests taken during the autopsy
Rectal thermometer test
Post-mortem staining
Rigor mortis
Action Plan:
Show the failure of considering other factors in taking the tests

Honest Witness
Your GOAL : Show errors on judgment or observation, and his natural bias
Action Plan:
i.
ii.
iii.

Test his memory

Show lack of opportunity for observation
Show his natural bias in distorting facts

Biased Witness
-

His desire is to hurt the defendant by stressing on the damaging parts of his
testimony

Your GOAL : Use his vindictive attitude to elicit answers favorable to defendant
Nature of the Witness:
Stresses on parts of his testimony that he believes to be most damaging
Action Plan:
i.
ii.

Show his ill feeling and animosity against defendant

Show that its a rehearsed testimony

Ask how many conferences he had with other witnesses and

prosecutor

Witness with a Criminal Record

-

One who was convicted of a previous crime

Your GOAL : Go to the circumstances of the crime he committed

Action Plan:
i.

Let him describe his criminal acts

Subpoena Clerk of Court that rendered conviction along with the
records if he denies conviction

Illiterate Witness
Your GOAL : Elicit favorable testimony
The Approach towards this kind of witness:
Be gentle and help him along
Action Plan:
i.
ii.

Lead his to answers favorable to your case

If he remains hostile, lead him to a total confusion
Ask on collateral matters

Weak and Unsure Witness

-

If hard-pressed, he will change his testimony

Your GOAL : Gain his confidence

Action Plan:
Be friendly but firm
He might volunteer the testimony you are seeking

Conceited, Flippant, Blustering Witness

-

An all-knowing witness who destroys himself

Your GOAL : Lead him to a trap and attack him fiercely

Action Plan:
i.

Encourage his egotistical attitude

Never lose your temper
Show him you are impressed with his intelligence

ii.

Lead him to ridiculous exaggeration

Witness who avoided Pre-Trial Interrogation

-

One who refused to talk to you or to any of your representatives

Your GOAL : Prove that he has something to hide

Caution:
The witness should appear to be under control and suspicious
Action Plan:
i.
ii.

Ask him why he refused to talk to your representatives

Show his animosity with the defendant

5.10. Apparent Cross-Examination

Although not required, the judge will still expect cross-examination

When there seems to be no realistic expectation of eliciting favorable admissions,
you conduct the apparent cross-examination by examining witnesses on collateral
points
o Who asked him to be a witness?
o Was he subpoenaed?
o Who talked to him about the case?
o Has he read any materials to prepare?
o Does he have any financial or business interest on the case?
o Does he know any of the parties?
At least plant a doubt on the judge rather than allowing him to blindly accept the
testimony
Use the cross to get your version of the facts

5.11. The Problem of the Opposing Counsel

If he knows Objections

Clarification Requests

An improper interjection of the opposing counsel to coach the witness

Object forcefully and ask the judge to direct the opponent to desist

An effort to interrupt your flow of cross and cue the witness that his answer was not so
good
Object to clarifications and emphasize that it can be made during redirect

Objection Speeches

Objections should only state legal basis for objection and not lengthy statements
Point this out to the judge

6. Examination of Expert Witnesses

Rule 130, Sec. 36, Revised Rules of Court

A witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception, except as
otherwise provided in these rules.

Exceptions (Opinion Evidence):

A lay witness on certain opinions (Sec. 50, Rule 130)
Expert witness on his area of expertise (Sec. 50, Rule 130)

6.1 When Admissible

Expert Testimony (as discussed earlier)

Laymens Opinion

In regard to common transactions of life at the time of occurrence and cannot be

reproduced
Opinion of witness can be had on:

the identity of a person about whom he has adequate knowledge;

A handwriting with which he has sufficient familiarity; and

The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior, condition
or appearance of a person. (Sec. 50, Rule 130)

Purpose of Testimony

Render an opinion based on first-hand knowledge

On facts supplied by others
On a matter of abstract scientific principle relevant to the case without considering facts of the
case
On a fact as opposed to an opinion which he observed through specialized
knowledge/technique

Definition and Qualifications

One who possesses skills, knowledge, learning or experience necessary to make his
opinion helpful to the trier of fact in his search for truth

US v Gil 13 Phil 530 : An expert is one possessing in regard to a particular object or

department of human activity, knowledge not usually acquired by other persons.
Scientific study and training are not always essential to the competency of a witness as
an expert.

Dilag & Co. Vs Merced (45 OG 5536) : Special knowledge or skill may be acquired not
only by formal learning but by study and experience

Dirilo vs Roperos (22 OG 246) : Court did not allow to testify as an expert on
handwriting a government district auditor who had not made any special study of
chirography and is not skilled in this art

Discretion of Trial Judge

A finding of the judge of witnesss qualification or disqualification as an expert is not normally

disturbed on appeal except when theres 1grave abuse of discretion or a 2serious mistake

Camerino vs Gonzales (CA-GR. No. 17567-R) : CA ruled that courts may accept or
refuse admission of an experts testimony, believe or disbelieve such. But party has
the right to offer expert testimony and it cannot be curtailed.

Masongsong vs Onate (CA-GR. No. 16716-R) : When party is too poor to pay fees for
handwriting expert, courts can require NBI to make such examination.

Rule on Admissibility of Expert Testimony

Subject of his opinion must be so related to a specialized field of knowledge that inference by
experts are beyond the ability of an average person

He must be shown to possess knowledge, skill and experience

Testimony must be relevant to the matter in issue

Paras vs Narciso (35 Phil 244) : Courts are not bound by expert testimonies on matters
within the general knowledge of judges

Expert Opinion cannot prevail over Facts duly Established in Evidence

People vs Dumlao (125 SCRA 821) : Doctors testimony as to how wounds were inflicted
cannot prevail over testimonies of witnesses who actually saw the incident.

Other Important Matters

The court should preliminarily determine the competency of a witness offered as an expert by
1
examination through proponent and opposing counsel and/or 2experts own opinion as to his
qualifications

After accepting him as an expert, he is still vulnerable to attacks for weakness in his
qualifications

It is not necessary that he be infallible

Explain the nature of the experts specialty and experience

Counsel may waive the qualification of the expert witness but there may be motives behind it

Information from statements of others given outside the court is not admissible

Testimonies must be susceptible of reasonable accurate conclusions not possibility

Court cannot accept testimonies on ultimate facts or questions of law which are within the
courts turf

Expert opinions are not conclusive but generally advisory upon the courts

Expert opinion may be disregarded by court if contrary to common sense or knowledge,

undisputed facts or physical laws