I.

Procedure for Witness Examination

Court controls the questioning of witnesses so as to make the presentation evidence effective, to avoid wasting time, and to protect
witnesses from harassment or undue embarrassment. The questioning of witnesses during trial must take place as follows:
I-A. Direct Examination
Attorneys call and question their own witnesses.
I-A(l). Form of Questions. As a general rule, witnesses may not be asked leading questions by the direct examiner (the attorney who
calls them testify). A leading question is one that suggests the answer you want, and often requires a "yes" or "no." Direct questions
generally should be phrased o evoke a set of facts from the witness.
I-A(2). Personal Knowledge [See Rule 11-D]. Direct examination cover all facts relevant to the case of which the witness has personal
knowledge.
I-B. Cross Examination Cross examination follows the opposing attorney's direct examination of his/her witness. Attorneys conduct
cross examination to explore the weaknesses in the opponent's case, test the witnesses credibility, and establish some of the facts of their
team's case when possible.
I-B(l). Form of Questions. An attorney should ask leading questions when cross examining the opponents witnesses. A leading question
allows the attorney to control the witnesses' answers to some degree. Questions tending to evoke a narrative answer that usually begin
with "how," "why," or "explain," should be avoided.
I-B(3). Impeachment. On cross examination, the attorney may want to attack the credibility of a witness to show the Court that the
witness should not be believed. A witness's credibility may be impeached by showing evidence provided in the case materials of the
witness's character and conduct, past convictions, and prior inconsistent statements.
I-B(3c). Prior Inconsistent Statement: "Did you state on direct that the light was yellow?""Is this your affidavit?""Did you swear to the
affidavit?""Does it say in paragraph 2, line 3 of the affidavit, given under oath, that the light was red." If the witness does not admit to a
prior inconsistent statement, the witness may be impeached. When the prior statement was signed and sworn by the witness, the student
attorney should introduce the statement and ask the witness:
1) "Is this your statement?"
2) "Did you make it under oath, at a time much closer to the events in controversy?., And
3) "Did it contain all you could then remember?"
I-B(4). Recross Examination. Recross is allowed if there is time. The team attorney does not need to specifically reserve time for
Recross examination follows redirect examination, but is strictly limited to the issues raised on redirect and should avoid repetition.
II. Evidentiary Objections
Students are restricted to the use of specific evidentiary objections during the mock trial that are outlined below. These simplified rules
were developed by the Constitutional Rights Foundation and modified by the North Carolina academy of Trial Lawyers and Professor
Vanderhoof.
II-E Character EvidenceWitnesses generally cannot testify about a person's character unless character an issue. Character evidence is
generally inadmissible because jurors may decide the case based on the kind of person a party is rather than the facts the case. (The
honesty of a witness, however, is one aspect of character always at issue.)
"Objection, your honor. Character is not an issue here," Or
"Objection, your honor. The question calls for inadmissible character evidence."
II-F. Opinion/SpeculationWitnesses may not normally give their opinions on the stand. Judges and juries must draw their own
conclusions from the evidence.
Example: A taxi driver testifies that the defendant looked like the kind of guy who would shoot old people. Counsel could object to this
testimony and the judge would require the witness to state the basis for his/her "opinion."
"Objection, your honor. The question calls for inadmissible opinion testimony (or inadmissible speculation) on the part of the witness. I
move that the testimony be stricken from the record."
II-G. HearsayIf a witness offers an out-of-court statement to prove the truth of the matter asserted in that statement, the statement is
hearsay. Because they are very unreliable, these statements ordinarily may not be used to prove the truth the matter asserted. For
reasons of necessity, a set of exceptions allows certain types of hearsay to be introduced. Hearsay is a very tricky subject.
Testimony not offered to prove the truth of the matter asserted is, by definition, not hearsay. For example, testimony to show that a
statement as said and heard, to show that a declarant could speak in a certain language, or to show the statement's effect on a listener is
admissible.
III. Inappropriately Phrased Questions
During the mock trial, students are restricted to the following objections when counsel is inappropriately questioning a witness.
I-A. Leading Questions
As a general rule, the direct examiner is prohibited from asking leading questions: he/she cannot ask questions that suggest the desired
answer. Leading questions are permitted on cross examination.
Example.- Counsel for the plaintiff asks the witness. "During the conversation, didn't the defendant declare that he would not deliver the
merchandise?"
"Objection, your honor. Counsel is leading the witness."
Counsel could rephrase the question, "Will you state what, if anything, the defendant said during this conversation, relating to the delivery
of the merchandise?"
III-B. Argumentative QuestionsAn argumentative question challenges the witness about an inference from facts in the case.
Example: Assume that the witness testifies on direct examination that the defendant's car was going 80 m.p.h. just before the collision.
You want to impeach the witness with a prior inconsistent statement. On cross-examination, it would be permissible to ask, "Isn't it true
that you told your neighbor, Mrs. Ashton, at a party last Sunday that the defendant's car was going only 50 m.p.h.?"
The cross examiner may legitimately attempt to force the witness to concede the historical fact of the prior inconsistent statement.
Now assume that the witness admits the statement. It would be impermissibly argumentative to ask, "How can you reconcile that
statement with your testimony on direct examination?" The cross-examiner is not seeking any additional facts; rather, the cross-examiner
is challenging the witness about an inference from the facts.
Questions such "How can you expect the judge to believe that?" Are similarly argumentative and objectionable. The attorney may argue
the during the closing argument, but the attorney must ordinarily restrict questions to those calculated to elicit facts.
"Objection, your honor. Counsel is being argumentative." Or,
"Objection, your honor. Counsel is badgering the witness."
III-C. Asked and AnsweredAsked and answered is just as it states, that a question which had previously been asked and answered is
being asked again.
Example 1: On Direct Examination - Counsel A asks B, "Did X stop for the stop sign?" B answers, "No, he did not." A then asks, "Let me
be sure we understand. Did X stop for the stop sign?
"Objection, your honor. This question has been asked and answered."
Counsel for X correctly objects and should be sustained, BUT...
Example 2. On Cross Examination - Counsel for X asks B, "Didn't you tell a police officer after the accident that you weren't sure whether
X failed to stop for the stop sign?" B answers, "I don't remember." Counsel for X then asks, "Do you deny telling him that?"
Counsel A makes an asked and answered objection. The objection should be overruled. Why.? Counsel is not asking the same question. It
is a sound policy to permit cross-examining attorneys to conduct a searching probe of the direct examination testimony.
III-D. Compound QuestionA compound question joins two alternatives with "or" or "and," preventing e interrogation of a witness from
being as rapid, distinct, or effective for finding the truth as is reasonably possible.
Example 1: (Using "Or") "Did you determine the point of impact (of a collision) from conversations with witnesses, or from physical
marks, such as debris in the road?"
Example 2: (Using "And") "Did you determine the point of impact from conversations with witnesses and from physical marks, such as
debris in the road?"
"Objection, your honor, counsel is asking a compound question."
The best response if the objection is sustained on these grounds would be, honor, I will rephrase the question," and then break down the
question. Remember, there may be another way to make your point.
III-E. NarrativeA narrative question is one that is too general and calls for the witness in essence to "tell a story" or make a broad-based
and unspecific response. The objection is based on the belief that the question, seriously inhibits the successful operation of a truth and
the ultimate search for the truth.
Example: The attorney asks A, "Please tell us all of the conversations you had with X-before X started the-job."
The question is objectionable and the objections should be sustained.
"Objection, your honor. Counsel's question calls for a narrative response."
III-F. Nonresponsive WitnessSometimes a witness's reply is too vague and does not give the details the attorney is asking for, or
he/she "forgets" the event in question. A Witness may use this tactic to prevent some particular evidence from being admitted. The
questioning attorney may use this objection to "force" the Witness to answer.
"Objection, your honor. The witness is being nonresponsive."
III-G. Outside the Scope of Cross ExaminationRedirect examination is limited to issues raised by the opposing attorney on cross
examination. If the questions go beyond the issues raised on cross, they may be objected to as "outside the scope of cross examination."
"Objection, your honor. Counsel is asking the witness about matters that did not come up in cross examination."

The following is a transcript of a direct examination in a criminal case for murder. We decided to comment on it (see the paragraphs in
italics). See if you agree with our comments and suggestions on how to make it better. This was taken from People vs. Lee, G.R. No.
139070, May 29, 2002 (382 SCRA 605-609):

"x x x

ATTY. OPENA: Now who was your companion, if any, at that time?
WITNESS : Me and my son, Joseph Marquez, and the wife upstairs putting the baby to sleep.
Q : What were you and your son, Joseph, doing then?
A : Watching TV.
Q : Will you please tell us your position, I am referring to you and your son in relation to the television set where you are watching
the show.
A : We were facing each other while watching television which is on the left side.
Q : Will you please tell us where exactly was your son, Joseph, seated while watching television?
A : At the end most of the sofa.
Q : The sofa you are referring to is the one near the window.

Some may say this is a leading question, especially considering that as you will notice in the later stages of the direct, the window being
referred to here will assume significance. There was no objection, however; so, it went in. But, if there was an objection, the examiner can
just rephrase by asking, Is there a window in the living room? Where was the sofa in relation to this window?

A : Yes, sir. Dikit lang po.

Q : Will you give us an idea or describe to us that window which you mentioned awhile ago?
A : Transparent glass.
Q : How high is it from the ground?
COURT: Which one?
ATTY. OPENA: The window glass?
WITNESS: About three feet from the ground.
ATTY. OPENA TO WITNESS:
Q : You said three feet. What do you mean by that? Is that window elevated from the ground?
A : The same height as this court window which is about three feet from the ground, and from one another about four by four
window [sic], three feet by the ground.
Q : Now, you demonstrated by showing a portion, you mean to tell us that window was mounted on a concrete or hollow block?
A : Hollow block, po.
Q : How high is that hollow block that you were referring to?
COURT: She said three feet.
ATTY. OPENA TO WITNESS:
Q : Which is higher, that sofa which is posted near the window or the hollow block?
A : Hollow block.
Q : By how many inches or feet?
A : About half a foot.
Q : You said the sofa was long. Will you please tell us in what portion of your sofa your son Joseph was seated?
ATTY. VARGAS: Already answered, your Honor. She said dulo, end of the sofa."

The reason asked-and-answered questions are objectionable is because they tend to unduly emphasize testimony. Here, the defense
objected, but at the same time he states what the answer was; instead of deemphasizing, he was emphasizing. If you will object on this
ground, just say "Objection, Your Honor, that question had been asked and answered." On the whole, however, unless you are sure the
court will remember that it was indeed asked and answered, it is better not to object on this ground. The court will just ask the
stenographer to read back the question and answer, or will just ask you what the answer was to that question before. Either way, it
defeats the purpose of objecting.
COURT: Sustained.

Part 2: Actual transcript

Posted By: je froilan m. clerigo
02-Jun-2008
(... continued)
ATTY. OPENA TO WITNESS:
Q: When you said end of sofa which portion, the left side or the right side?
A: The right.

Apparently, the positions of the witness and the victim, the locations of the sofa and the window are important.
So, why not have a diagram (or floorplan) of the living room of the house, blow it up and, in the ensuing
questions, ask the witness to use the diagram in pointing out these positions? Since from the earlier testimony,
the familiarity of the witness to the physical layout of the house is already established, we just need to ask the
following questions: Q: Will a diagram help you in making your testimony clearer? A: Yes. Q: I am showing to you
this document. Do you recognize it? A: Yes. It is the diagram of the sala of our house. Q: Does it accurately and
faithfully depict the layout of the sala on such and such date? A: Yes.

Q: Now, while you and your son were watching television, was there anything unusual that transpired?
A: Yes, sir.
Q: Tell us what was that all about.
A: Mayroon po akong napansin na kamay na nakatutok sa anak ko. Nakita ko po si Noel Lee na nakatayo sa
may bintana.

Here, the accuseds name was already mentioned. It would have been really advantageous for the prosecution
to have used the name of Noel Lee as often as possible in the succeeding questions. For instance: Q: You
mentioned Noel Lee. Is that Noel Lee present in the courtroom today? A: Yes. Q: Can you point him out to us? A:
(Witness pointing) Thats him. Q: Your Honor, may the record reflect that the witness pointed to the accused as
the Noel Lee she was referring to earlier. Then, since Noel Lee and the accused are but one and the same
person, he may be referred to as either in the succeeding questions. For instance: Q: You earlier said that a
hand was holding a gun. Whose hand was it? A: Noel Lees hand. Q: Where was Noel Lees gun pointed? A: It
was pointed at my son. Q: What happened next? A: He fired the gun. Q: When you said he, it was Noel Lee you
are referring to as the one who fired the gun? A: Yes. We would want Noel Lees name repeated as often as
reasonable.

Q: What do you mean by the word kamay?

A: Hawak hawak po niya iyong baril, nakatutok po sa anak ko.
Q: What did you do with what you saw?
A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng baril. Tumingin po siya sa may bintana,
ganoon po, sabay putok ng baril.
COURT:
You said he turned the head. Who turned the head? Sino ang gumanyan sa sinabi mo?
A: (Witness demonstrating that the victim peeped through the window).
Q: And then?
A: At the same time the firing of the gun [sic] and I saw my son slumped.

The diagram we mentioned earlier may here be used to emphasize the scene more. Note that this was when
and where the action happened; youd want the judge to be there at the scene with the witness, to see and feel
what happened. For instance: Q: Referring you to the diagram. I am handing to you a pen. Please mark with the
letters `NL that part where Noel Lee poked and pointed his gun at your son. A: Here, from this window (witness
marking the diagram) Q: (Manifesting) The witness has marked with the letters NL that part of the diagram near
the word `Window. And please mark with the letters `JM that part where your son Joseph Marquez was seated
at the time. A. Here (witness marking the diagram), etc.

The point is to exploit and emphasize the witness explosive narration by calling for details that not only make
the scene more vivid, but rewind and make the judge re-view the scene repeatedly, making it more memorable.

Part 3: Actual transcript

Posted By: je froilan m. clerigo
03-Jun-2008

(... continued)
ATTY. OPENA TO THE WITNESS:
Q: And after your son was slumped, what did you do?
A: I went to my son and carried him to take him to the hospital.
Q: How many shots did you hear?
A: Five shots.
Q: That was prior to helping your son?
A: Yes, sir.
Q: And how many times was your son hit?

ATTY. VARGAS:
Objection, your honor. It was already answered. Because according to her it was five shots.

I dont get it: the defense objects because it was already answered. In the same breath, however, he provides
the answer: 5 shots. Why object at all?

COURT:
It does not follow that the victim was hit. So, the witness may answer.
WITNESS:
Twice, Two shots hit my son, two shots on the sofa and one shot on the cement.
COURT:
How about the other one?
A: Doon po sa semento.

Again, the diagram could have proved useful here by pointing to where the bullets hit. It wouldnt also have hurt
if more details are elicited so that the testimony is mined the more: Q: Can you describe the gun as you saw it?
Please demonstrate the position of the gun and your son when you heard the shots (then make of record how
the witness demonstrated the scene).
ATTY. OPENA TO WITNESS:
Q: And who fired these shots?
A: Noel Lee.
Q: That Noel Lee that you are referring to, will you please point at him if he is around?
A: (Witness going down the witness stand and pointing to accused Noel Lee).
Q: How do you know that it was Noel Lee who shot your son?

As earlier noted, we think that there could have been more impact if the identification was made earlier.
Since Noel Lee was already identified here, the examiner could have used either the name or the label the
accused when referring to Lee.

A: Kitang kita ko po. Magkatapat po kami.

Q: Will you please describe to us?
A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi doon. Nandoon po kaming dalawa ng
anak ko nanonood ng television. (Witness sobbing in tears). Napakasakit sa akin. Hindi ko man lang
naipagtanggol and anak ko.
The testimony can be mined more by asking about what the witness was thinking when she saw Noel Lees gun
pointed at her son, when the son was shot, when she saw him slumped on the sofa. Because it involves state of
mind, not to mention her emotions at the time, the testimony would add more action and drama, making the
testimony more memorable to the judge.

COURT:
She was emotionally upset.
ATTY. OPENA:
Ill just make it on record that the witness was emotionally upset. May I ask if she can still testify?
xxx xxx xxx
WITNESS:
Masakit lang po sa loob ko ang pagkawala ng anak ko.
ATTY. OPENA TO WITNESS:
Q: You saw that the light was bright. Where were those lights coming from?
A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog. Saka sa labas may nananahi po doon
sa alley katapat ng bahay namin. At saka po doon sa kabila, tindahan po tapat po namin, kaya maliwanag ang
ilaw.
Q: After trying to help your son, what happened?
A: I was able to hold on to my son up to the door. Upon reaching the door, I asked the help of my kumpare.
Q: Meanwhile, what did the accused do after shooting five times?
A: He ran to the alley to go home.
Q: Now you said he ran to an alley towards the direction of their house. Do you know where his house is
located?
A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City.
Q: How far is that from your residence?
A: More or less 150 to 200 meters.
Q: Where did you finally bring your son?
A: MCU.
Q: When you say MCU, are you referring to MCU Hospital?
A: Yes, sir. MCU Hospital. At MCU, life-saving devices were attached to my son. Later, after reaching 11:00, he
died.
COURT:
11:00 P.M.?
A: Yes, maam.
Q: Same day?
A: Yes, maam.
xxx xxx x x x.
Not to be callous but there could have been added persuasive impact if the examiner also brought out the
emotions in the testimony. This could be the perfect ending for the testimony, and they could be justified
because they are the basis for moral damages. Q: What were you thinking while your son was being revived in
the hospital? Q: How did you feel when you received the news that your son is already dead? Q: What were you
feeling during her sons wake? Q: During the burial? Q: How do you feel about Noel Lee, your sons killer, as you
now sit on that stand?
As can be seen, it's always a good idea to get hold of the transcript of our examination (particularly on cross-
exams!), evaluate what we've done wrong and see what can be done about it next time. Or, if we think we did
right, what else can be done to make it better. The key is always to look for ways to learn and improve - and
then learn and improve at our next trial date.