PARTI

THE SCIENCE AND ART

OF PRACTICE COURT

"Technique without ideals is a menace.

Ideals without technique are a mess..."

- Carl Willy *

• U.P.L.C., Trial Techniques: Proceedings of the Institute on Trial

Techniques 1979, p. 16; True name is Karl Llewellyn, American
Legal Philosopher [Cited in Jose W. Diokno, DIOKNO ON TRIAL:
Techniques and Ideals of the Filipino Lawyer, edited by Atty. Jose
I. Manuel Diokno, 2007, p. 29].

1
 CHAPTER 1
INTRODUCTION

Practice Court is a science of accurate visualization of the

party's legal theory. It is the correct conceptualization of litigant's
cause of action or accusation or defense. Its topics also delve into
the proper categorization of the facts and circumstances in a
particular case and the appropriate construction of eliciting questions
corresponding to: a) the ultimate facts in a pleading; b) the factual
issues defined in a pre-trial order; c) the purposes of the oral offer of
witness' testimony; and d) the evidentiary facts desired to be elicited
from the witnesses.

As a law subject, Practice Court is considered as an art of

introducing the party's legal theory of a case or defense—complete
in its structural form, and of ascertaining the truth respecting a
matter of fact in issue via examination of witnesses' personal
circumstances in a mock trial, prefatory to actual law practice.
Practice of law as defined means any activity, in or out of court,
which requires the application of law, legal procedure, knowledge,
training and experience [Cayetano v. Monsod, G.R.No.100113, Sept.3,
1991, 201 SCRA 212; Moreno's Law Dictionary].

Pursuant to Rule 138-A of the Revised Rules of Court, a law

student may engage in the practice of law as provided for in the
aforementioned rule. One might ask then how would he/she appear
and manifest before the court, or what would be the essential
technique which a trial lawyer must know or have before doing so.

THE ESSENTIAL TRIAL TECHNIQUE

Atty. Jose W. Diokno explains that, "Different trial lawyers

may give different answers, but for me the most important
technique is to plan that trial in advance. To know before I go to
court what facts I want to prove, how and in what order I will prove
them, and as the trial progresses, to know what I have proved and
what I have yet to prove, and before I rest my case to be sure that I
3
 have proved everything that I want to prove. You may not know
how to cross-examine, you may not know how to make objections,
but if you have planned your case, then you have a much
better chance than a brilliant cross-examiner who has gone to
court without a plan" [ U P . Law Center, Proceedings of the Institute on
Trial Techniques 1979, p. 171].

A trial plan may be simple or elaborate. It may be one that

can be kept purely in mind (Visual Trial Plan) or written down
(Written Trial Plan). It may be followed closely, modified or
abandoned as the order of trial of the case progresses [ibid.].

"But some plans, there must be if only to make sure that you
know what you are doing at the trial. In this jurisdiction we do not try
our cases continuously. We start one day with one witness, maybe
two; and then the cases may be postponed for a month, two
months: We continue, and so forth and so on. So, it often happens
that within one week many of us trial lawyers are in court trying at
least two and sometimes as many as seven or eight different cases
that you try, and you have to have some records of your trial plan. It
therefore should be in writing. Now how much you are going to
plan, that is, how elaborate your plan will be depending upon the
character of the lawyer and the nature of the case you are trying"
[ibid.], or the cause or subject matter of the actions.
 CHAPTER 2
THE ACTIONS

A civil action is one by which a party sues another for

enforcement or protection of a right, or the presentation or redress
of a wrong, which may either be ordinary or special [Sec. 3 (a), Rule
1, RRC]. Both the ordinary and special civil actions are governed by
the rules for ordinary civil actions, subject to the specific rules
prescribed for special civil action [Sec.3 (a), Rule 1, RRC]. A civil
action is commenced by the filing of the original complaint in court
[Sec. 5, Rule 1, RRC]. Any ordinary civil action must be based on a
cause of action [Sec. 1, Rule 2, RRC].

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

violates a right of another [Sec. 2, Rule 2, RRC]. It pertains to the
allegation of ULTIMATE facts in a pleading [Sec.1, Rule 8, RRC]. Its
elements are: 1) the legal right of the plaintiff; 2) the correlative
obligation of the defendant; 3) the act or omission of the defendant
in violation of said legal right. [Nadela, K.O. vs. the City of Cebu &
MCDP, G.R.. No. 149627, September 18, 2003, p. 280; Ma-ao Sugar
Central Co. v. Barrios, 79 Phil. 667, F. B. Moreno, supra].

A right of action is a remedial right, depending on the

substantive law belonging to some persons [Marques v. Varela, 92
Phil. 375; F. B. Moreno, ibid].

A criminal action is one by which the state prosecutes a

person for an act or omission punishable by law [Sec. 3, (b), Rule 1,
RRC]. It shall be initiated by filing a written complaint or information,
with proper office or court, in the name of the People of the
Philippines and against all persons who appear to be responsible
for the offense involved [Sections 1 & 2, Rule 110, RRC]. It is either
generally a crime or restrictedly a felony.

A felony is an act or omission committed by means of deceit

(do/o) or fault (culpa) punishable by law [Art. 3, RPC]. On the other
hand, a crime is generally an act or omission violating a special
penal law, statute or a municipal ordinance, or any offense as
defined and penalized under the Revised Penal Code.

5
 If every ordinary civil action must be based on a cause of
action, by analogy, a criminal action must also be based on a cause
of accusation. Like a cause of action, a cause of accusation has also
its three (3) elements, to wit: 1) the legal authority of the state; (2)
the correlative duty or obligation of the accused or defendant; and,
3) the act or omission of the accused or defendant violating said
legal authority.

In the institution and prosecution of both civil and criminal

actions, the plaintiff may encounter the adverse party's valid
defenses, such as: a) the grounds of a motion to dismiss [Sec. 1 (a)
to (J), Rule 16, RRC] or a motion to quash [Sec. 3 (a) (J), Rule 117,
RRC]; b) the grounds of objection to the examiner's oral offer, to the
examiner's questions, to the witness' answers, and to the
admissibility of the object, real, demonstrative or documentary
exhibits [Sec. 3, Rule 128, Rule 130 & 132, RRC]; as well as, c) the
grounds of a demurrer to evidence [Sec.1, Rule 33 & Sec.23, Rule 119,
RRC].

"If a defense relied on is based on law, the pertinent

provisions thereof and their applicability to him/her shall be clearly
and concisely stated" [Sec.1, (Par. 2), Rule 8, RRC].

On the other hand, if a defense is based on facts, a

defendant must specify each material allegation of fact the truth of
which s/he does not admit and, whenever practicable, shall set forth
the substance of the matters upon which s/he relies to support
his/her denial. Where a defendant desires to deny only a part of an
averment, s/he shall specify so much of it as true and material and
shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of
a material averment made in the complaint s/he shall so state and
this shall have the effect of a denial [Sec. 10, Rule 8, RRC].

In a criminal case, however, whether a defense is based on

law or facts, the accused must be present at the arraignment and
must personally enter his/her plea. A plea of not guilty shall be
entered for him/her, as provided under Rule 116 of the Revised
Rules of Court, Sec. 1, par. a, b, c & d, and Sec. 5.

After arraignment, the court shall order a preliminary

conference (in summary procedure) or a pre-trial conference to
consider the purposes set forth under Sec.1, Rule 118, or a pre-
6
conference before the branch clerk of court for a plea bargaining,
for a possible settlement on the civil aspect of the case, for
admission of facts, for marking of exhibits, stipulation of factual and
legal issues, number of witnesses, trial dates [A.M. No. 03-1 -9-SC],
and modification of the order of trial [Sec. 1 (e), Rule 118, RRC].

In a civil case, after the last pleading has been served and
filed, and at the plaintiffs instance, or ex parte motion, the court shall
set the case for preliminary conference [Sec. 7, RRSP], or for pre-trial
conference under the regular procedure [Sec. 1, Rule 18, RRC], or
may refer the case for pre-conference before the branch clerk of
court for an amicable settlement, admission of facts, stipulation of
factual and legal issues, marking of exhibits, admission of the
identity, authenticity thereof, number of witness, etc. [A.M No.03-1-9-
SC].

After the termination of the pre-trial conference, the Court

shall issue a Pre-trial Order reciting the actions taken, and those
taken before the branch clerk of court, which shall control the course
of action during the trial [Sec. 4, Rule 118; Sec. 7, Rule 18, RRC; A.M.
No.03-1-9-SC].

THE TRIAL

Trial is the period for the introduction of evidence by both

parties [Asana v. Tiu, SP-00432, Nov. 12, 1971; Moreno, Phil. Law
Dictionary].

As elucidated by Ambassador Amelito R. Mutuc, "trial is the

culmination of all of a lawyer's efforts, the researches in the law
and jurisprudence, the difficult and painstaking search for
evidence, the preparation of the trial brief and the coaching of
witnesses. It is here where one's strategy of the case will be tested
- where excitement of the intensive preparations of the previous
months will flower" [U.P. Law Center, Lecture on General Courtroom
Deportment, Proceedings of the Institute of Trial Techniques 1979, pp.3-
4]-

"It is at the trial where a lawyer must present an image of

confidence, of tranquil composure in the manner s/he moves
about, how s/he addresses to court, how s/he examines and cross-
examines witnesses, how s/he argues and perorates" [ibid]. When

7
 s/he stands up to speak, it should be free from stiffness and
affectation. When s/he engages opposing counsel in debate, s/he
must maintain his/her calm. S/he must be sure that his/her temper
is unruffled. S/he must preserve his/her cool amidst heated
tempers and tense situations" [ibid].

In other words, the trial lawyers' business is more on the

presentation of evidence in court to prove the ultimate facts in
issue, while reserving their persuasive arguments in their position
papers or memoranda stating clearly and distinctly the
applicable rule of law to the state of facts which have been duly
admitted in evidence by the court in the course of the trial [Read
Sec.1, Rule 36; Sec.1, Rule 120, RRC].

In trial, the parties' witnesses are presented in court to

testify under oath or affirmation [Sec.1, Rule 132, RRC]]; their
personal circumstances are elicited; the purposes of their
testimonies are offered in evidence [Sec.34, 35, Rule 132, RRC]; then
they are required to answer the questions [Sec.3, Rule 132, RRC]
and to give competent, proper and relevant answers [Sec.39, par. b;
Rule 133. RRC] regarding facts of their own personal knowledge
[Sec. 36, Rule 131, RRC] in any order of trial [Sec. 5, Rule 30; Sec.11,
Rule 119] or order in the examination of a witness [Sec. 4,Rule 132,
RRC], hereunder, unless the court directs otherwise, thus:

st
I. PLAINTIFF'S EVIDENCE [ 1 court calendar day; calling
of the case; appearances of counsels; swearing in and
qualifying the witness; offer of witness' testimony and its
purposes; and examinations] -
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.

(Plaintiff's offer of exhibits, if no other witnesses to be

presented; Demurrer to evidence by the adverse party, if any;
Court's approval/denial).

nd
II. DEFENDANT'S EVIDENCE [2 court calendar day;
appearances of counsels; swearing in and qualifying the
witness; and its purposes; and examinations] -
a] Direct examination by the proponent;
b] Cross-examination by the opponent;
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 c] Re-direct examination by the proponent;
d] Re-cross-examination by the opponent.

(If no other witnesses to be presented, the defendant/defense

may offer its exhibits, if any; and may rest its presentation of
evidence).

rd
III. PLAINTIFF'S REBUTTAL E V I D E N C E [3 court cal. day;
appearances of counsels; swearing in and qualifying the
witness; offer of witness' testimony and its purposes;
and examinations]-
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.

th
IV. DEFENDANT'S SUR-REBUTTAL EVIDENCE, [4 court
cal. day; appearances; swearing in and qualifying the
witness; offer of witness' testimony and its purposes;
and examinations]-
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.

V. SUBMISSION of the parties' memoranda/position

papers. This is still part of the trial as it comprises the
counsels' arguments, under the order of trial in Sec.5
(g), Rule 30, Rules of Court [Framers Construction &
Development Cor. V. Lugar, GV-03873, Sept. 30, 1985;
Moreno, Phil. Law Dictionary; And, in Sec. 11 (d), Rule
119 of Rev. Rules of Court. fBut read Salvador v.
Salamanca, 144 SCRA 276 (1996); and P v. Pagsanjan, 221
SCRA735 (1988)].

The order of trial may be modified by conducting first a

preliminary hearing of defendant's affirmative defenses [Sec. 6, Rule
17, RRC], or reversed by hearing first the accused' affirmative
defenses [Sec. 11 (e), Rule 119, RRC], both in court's discretion.

Thus, appeal from order denying motion to reverse order of

trial is not proper [P v. Marcial, G.R. No. 152864-65, 9/27/06, CDSCD, p.
1224]. Moreover, the conduct of trial is under judge's control, and
9
 depends to some extent upon his/her own interpretation of the rules
[Dizon vs. De Borja, 37 SCRA 46].

Accordingly, the period of trial terminates when the judgment

begins [Felisimino vs. Gloria, 47 Phil. 970; Moreno, ibid.].

THE JUDGMENT / DECISION

Judgment is the adjudication by the court that the accused

is guilty or not guilty of the offense charged and the imposition on
him of the proper penalty and civil liability, if any. It must be written
in official language, personally and directly prepared by the judge
and signed by him/her and shall contain clearly and distinctly a
statement of the facts and the law upon which it is based [Sec.1,
Rule 120, RRC]. A judgment or final order determining the merits
of the case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him/her, and filed with the clerk of court
[Sec.1, Rule 36, RRC].
Basically, no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the
law on which it is based [Art. VIII, Sec. 14, 1987 Philippine Constitution].

As lectured by Hon. Associate Justice Lucas P. Bersamin of

the Supreme Court on the aforecited sections of the rules and the
Constitution, a valid written decision/judgment shall consist of
three (3) essential parts: (1) the body - court's legal opinion or ratio
decidendi stating clearly and distinctly the facts and the law upon
which it is based; (2) the dispositive portion - the court's judgment
[City of Manila vs. Entote, 57 SCRA 744], which disposes the case and
declares or settles the rights and obligations of the parties [Espiritu
vs. CFl of Cavite, 166 SCRA 394]; and (3) the signature of the judge
who directly and personally prepared the judgment, written in an
official language, and filed with the clerk of court [Given during the
Regional Judicial Career Enhancement Program (Level 5) for the Second
and First Level Trial Courts of Region 10 held at Dynasty Court Hotel,
Cagayan De Oro City, Dec. 4-6, 2007].

In essence, a judgment or decision is a clear and distinct

application of the substantive law to the clear and distinct facts of
the case or defense. These facts are nothing but the TRUTH. But,
what is this truth? What does the Ecumenical Prayer for all Courts
mean of the phrase channels of truth?
10
 CHAPTER 3
THE CHANNELS OF TRUTH

The "channels of truth" alluded to in our ecumenical prayer

are undoubtedly the witnesses testifying in court, under oath or
affirmation [Sec. 1, Rule 132, RRC] "to tell the truth and nothing but the
whole truth". Considering that the witnesses must answer to
counsels' questions [Sec. 3, Rule 132, RRC], the examining counsels
are also the channels of truth. Considering, further, that the court
must employ evidence in ascertaining the truth respecting a matter
of fact [Sec. 1, Rule 128, RRC], it is certainly a channel of truth.

The court's personnel can also be considered as the

channels of truth because they are assisting the court in the
management and disposition of cases.

But where does this "channeled truth" come from?

Fr. Michael D. Moga explains that in human life there are

various "realms" or "contexts" in terms of which we think and talk. It
is within such realms or contexts that we find a basis for judging a
particular statement to be true or untrue [The enduring QUESTIONS,
St. Paul Pub. 2005, p. 46].

THE CONTEXTS OF TRUTH

One context that we humans live in is the context of fact.

This is shown by the way how we make our statements. What we
say can be judged to be true or untrue in terms of this realm of
fact—in the way how we utter the words coupled with our own
gestures. If I say, for example, that "it is raining" my statement can
be judged to be true or false on the factual situation in which we
live. My statement is true if, as a mater of fact, it is raining. Such
statement of fact possesses objectivity since it stands independent
of my personal judgment [id. p. 46].

A second context that verifies many of our human

statements is that of experience. Such a context goes beyond facts
11
 since our human experience includes meaning, value, beauty,
morality (obligation and guilt) and the holy. For example, we
experience that challenges make life interesting, that family life is
important [id., p. 47].

Another context in which we humans live is the realm of

mathematics, a context which objective and communal truth can be
affirmed. If I say, for example, that "2 + 2 = 4" I have made a
statement which is true. But if my statement would have been "2 +
2 = 5", definitely, the statement I am making is a false one since the
objective realm of mathematics would judge my statement to be
false.

There are also contexts of science which give a basis for the
truth or non-truth of many of our statements. There are many
different approaches to science, each of which has its own context
[id., p. 48].

A further context of truth is that of religion. Any human

religion has a certain tradition made up of certain documents, forms
of worship and teachings. The religious truth that 'God created the
world' can be substantiated by reasons that are presented. The
same can also be supported by the way that it fits in with other
elements of our human experience [ibid.].

Another realm that gives a basis for true statements is the

realm of philosophy. Some truths of philosophy are true because
they are self-evident. To say that "the whole is greater than any
one of its parts" is to affirm a statement that is true because of its
being self-evident [id. p. 49].

There is a type of philosophy where truth is based on the

"logic" of certain process of thinking. The conclusion of a correct
syllogism, for instance, is true because it follows a logical process
which is valid, arguing from the premises of that syllogism to its
conclusion [ibid.].

We find that many statements of philosophy are

substantiated by the reasons that are given.

There is a further type of truth in philosophy which arises

from the way that a particular statement fits into other truths or into
a system of thought. Truth in this case becomes a matter of
12
"coherence", x x x 'human beings are free' is true because freedom
"fits into" the fundamental responsibility that is part of human life [id
p. 50].

At other times, philosophy finds a basis for the truth of its

statement in human experience, affirming that certain things are
true because they are part of human experience. If I affirm, for
instance, "that the life of a human being is precious," the truth of
that philosophical statement is based on experience [ibid.].

In sum, the contexts of truth may be factual, experiential,

scientific, mathematical, religious and philosophical. The
philosophical truth may further be typified as; a) self-evident; b)
logical; c) rational; d) coherent; and e) experiential.

Obviously there are still many other contexts which support

the truth of our human statements [id., p. 51], as there are other arts,
sciences and trades. One of these, which is of great import for the
purpose of our study, is in the field of law.

Human knowledge or understanding includes the field of law

and it is in that context which supports the truthfulness of the
statements made by a witness in a court proceeding.

THE LEGAL TRUTH

The legal truth, like in other contexts of truth, is also

complex. It is of three (3) kinds:

1) Legislative Truth
The provisions in a particular legislative act are true
because rights and justice are intended by the law-making
body to prevail [Art. 10, NCC].

2) Administrative Truth
The actions, proceedings and statements made by
the executive branch of the government, its departments,
agencies and instrumentalities are true because of the legal
presumption that official duties are regularly performed
[Sec.3 (m). Rule 131, RRC], and executed according to the
laws and the Constitution [Par. 3, Art. 7, NCC].

13
 3) Judicial Truth
The clear and distinct statements of fact and law in a
judgment are true because the facts to which the law being
applied are duly ascertained in a judicial proceeding
according to the means sanctioned by the rules or law.

In any judicial proceeding, the witnesses' statements of fact

which appear to be true according to their own beliefs, personal
views, or novel contexts of truth, must be reduced to the truth of
law, or clarified and proved pursuant to the Revised Rules on
Evidence. Evidence as defined under the Rules of Court is the
means, sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact [Sec.1, Rule 128,
RRC], judicially conceived as "judicial truth" [Cf. Flores v. CA, 259
SCRA 618 (650)].

Let's take again the different contexts of truth in relation to

the context of judicial legal truth through the following examples:

Factual Truth:
The witness' statement of fact that the accused-
minor stabbed another minor with the use of a kitchen knife
is legally true when the witness testifies according to his/her
personal knowledge, that is, derived from his/her own
perception. It is untrue when the witness merely testifies as
to what was told to him/her by another person. [Sec.36, Rule
130, RRC]. The latter cannot be considered true because
under the precepts of the law it is considered as hearsay.

Experiential Truth:
The test to determine the value of the testimony of a
witness is whether such testimony is in conformity with
knowledge and consistent with experience of mankind.
Whatever is repugnant to these standards becomes
incredible and lies outside of judicial cognizance. Evidence
to be believed must not only come from the mouth of a
credible witness but must also be credible in itself [People vs.
Patano, G.R.No.129306, March 14, 2003, CDSCD, p. 636].

Scientific and Mathematical Truths:

These become the legal truths after the court allows
the expert witness possessing special knowledge, skill or
training to give his/her opinion on a special matter in issue
14
 [Sec.49, Rule 130, RRC], and after such testimony is offered
and duly considered in evidence [Sec.34 & 35, Rule 132, id.].

Religious Truth:
The Ten Commandments of God and other religious
teachings are already contained in our Revised Penal Code,
Civil Code, Muslim Code, Agrarian Code, Bldg. Code, Labor-
Code, Tax Code, Election Code, Environment Code, Rules
of Court, etc.

Philosophical Truth:
Its five (5) types: self-evidence, logic, reason,
coherence and human experience, have been made as
basis of the Rules on Evidence, Revised Rules of Court.

For instance, Rule 129 on judicial notices and judicial

admissions; Rule 130, Sections 26-35, on admissions, confession,
conduct and unaccepted offer; Rule 131, Sections 2-3, on legal
presumptions are rooted from the self-evident type of philosophical
truth.

Rule 132, Section 15, on exclusion and separation of

witnesses on the other hand belongs to the coherent type of
philosophical truth. It fits or jibes with the other context of truth, the
religious truth. The Book of Susana tells us that the two
complaining witnesses against respondent Susana were directed to
testify exclusively and separately [Dn.13: 51-59, NAB].

Rule 130, Section 49, on expert witness' opinion belongs to

the reasoning type of philosophical truth, as the witness is required
to give reasons of his/her expert testimony. Moreover, Rule 131,
Section 1, on burden of proof, and Rule 133, Sections 1 - 7, on
weight and sufficiency of evidence also belong to the reasoning
type of philosophical truth. The facts in issue require sufficient
supports or reasons.

Rule 130, Section 50, on ordinary/lay witness' opinion

belongs to the experiential type of philosophical truth. The witness
testifies merely on the basis of his/her familiarity, knowledge and
acquaintance of a matter in issue.

15
 Other sections of Rule 130, on the presentation of evidence,
also belong to the logical type of philosophical truth. The
testimonial, object or documentary evidence presented requires the
prior established evidence. Otherwise, it is generally objectionable
for being improper, incompetent, or irrelevant. Specifically, it is
objectionable for lack of foundation or no basis at all.

Basically, being aware of the complexity of human truth—

the different basis for truth of witnesses' testimonies, apprised of
the facts of the case or defense, cognizant of the substantive and
procedural laws affecting thereto, and conversant of the rules on
evidence, we may now safely say that the trial lawyer is now ready
to: 1) enforce or defend in court his/her client's "rights and justice"
as provided for by law [Art. 10, NCC]; 2) plead his/her client's claim
or defense [Sec.1, Rule 8, RRC]; 3) make an offer, interpose an
objection, strike out and tender the excluded evidence [Sections 34,
35, 36, 39 & 40, Rule 132, RRC]; 4) elicit from his/her witnesses the
evidentiary facts affecting the acts or omissions complained of
[Sec.1, Rule 8, RRC]; and, 5) persuade the trial judge of the Legal
Truth of those facts duly ascertained according to the rules on
evidence [Rules 128 -133,RRC], and / or to the rules on depositions
and modes of discovery [Rules 22 - 29, RRC].

The evidentiary facts, which appear to be legally or judicially

true, may convince the court to render a favorable judgment to one
party, if:

(a) Such facts are necessary to complete the structure of a

party's definite legal theory [See pp. 38-40]; and,
(b) The adopted legal theory is the most appropriate among
of the provisional theories or hypothesis of the case or
defense.

16
 CHAPTER 4
THE HYPOTHESIS OF A CASE / DEFENSE

The hypothesis of a case is a provisional application of "the

law or rule of reason to the existing conditions" or facts of the case,
which the investigating counsel has gathered from his/her client
and probable witnesses.

PROBLEM: Mr. A sold to Mr. B a parcel of land presently

occupied by Ms. C. The latter, claiming as co-heir of Mr. A
refused to vacate the subject land, despite of Mr. B's
several letters of demand to vacate therefrom.

QUESTIONS: What is the legal remedy of Mr. B against Ms.

C? What about Mr. A, what is his remedy? After considering
all the state of facts or existing conditions of a case, which
of Mr. B's tentative legal remedies is the most appropriate?
As to Ms. C, what would be her tentative, provisional theory,
or hypothesis of defense?

Supposed Ms. C stabbed Mr. B with a kitchen knife inside

her house, what would be her probable defenses? Denial?
Alibi? Misidentification of her identity? Frame-up? Self-
defense? Defense of right to property? Accident? / Illness?

Once a hypothesis is finally selected by the counsel as the

most legally feasible for his/her client's case or defense, this
becomes a party's definite legal theory.

THE PARTY'S DEFINITE LEGAL THEORY

The Party's Definite Legal Theory is the counsel's definite

application of the law to the facts of a case or defense.
0

As a rule, a party who deliberately adopts a certain theory

upon which the case is tried and decided by the lower court will not
be permitted to change theory on appeal. Points of law, theories,
issues and arguments not brought to the attention of the lower court
need not be, and ordinarily will not be, considered by the reviewing

17
 court, as these cannot be raised for the first time at such late stage
[PPA vs. City of lloilo, G.R. No. 109791, July 14, 2003, CDSCD, p.100].

In said case, respondent City of lloilo sought to collect from

petitioner PPA real property and business taxes. It alleged that
petitioner is engaged in the business of arrastre and stevedoring
services and the leasing of real estate; and it is a declared and
registered owner of a warehouse used in its business operation.

In its pleading therein, the petitioner PPA argued that as

government-owned corporation it is exempt from paying real
property taxes by virtue of its exemption in its charter, Sec. 40,
RPTC and Executive Order No. 90. Subsequently, in its
memorandum, it alleged that it is a government instrumentality,
which may not be taxed by the local government.

The court a quo rendered a decision holding petitioner PPA

liable for real property taxes x x x and for business taxes with
respect to petitioner's lease of real property, but not on
petitioner's arrastre and stevedoring services, as these form part of
its governmental function.

On appeal, petitioner PPA contested on the taxability of its

warehouse and argued that it is part of the "port constructed by the
State"; it is a property of public dominion [Art. 420 (1), NCC; Sec. 3 (e),
PPA Charter]. But this thesis (the fact of State Ownership) was
never presented at the pre-trial, which justified disallowance of
petitioner's new theory. Further, no proof was adduced during the
trial that the warehouse was constructed by the State, which would
qualify the same as "property of public dominion."

The warehouse in the case at bar may not be held as part of

the port considering its separable nature as an improvement upon
the port. The petitioner may not invoke the definition of "port" in its
charter to expand the meaning of "ports constructed by the State" in
the Civil Code to include improvements built thereon.

Therefore, the subject warehouse being owned by petitioner

itself, and not by the State, it is taxable by the respondent City of
lloilo; Changing its theory (from Corporate ownership to State
ownership) on appeal would thus be unfair to respondent and
offend the basic rule of fair play, justice and due process; a party's
theory may be changed on appeal when the factual bases thereof
18
would not require presentation of any further evidence by the
adverse party in order to properly meet the issue raised in a new
theory [ibid., citing the Lianga Lumber Co. v. Lianga Timber Co Inc 76
S C R A 197 (1997)].

At any rate, as ruled in NAPOCOR v. Presiding Judge. RTC,

Br. XXV. "the State has no reason to decry the taxation of
NAPOCOR'S properties. Real property taxes, after all, form part
and parcel of the financing apparatus of the Government in the
development and nation-building, particularly in the local
government-level. X x x. To all intents and purposes, real property
taxes are funds taken by the State with one hand and given to the
other. In no measure can the government be said to have lost
anything" [Cited in PPA Case, supra; Sec. 1 (e), P.D. 1 9 3 1 ; E.O. 93].

Actually, the petitioner in this PPA case was raising a

question of fact, and not merely a question law.

Whenever a question of law has been resolved on appeal

and once a decision attains its finality, whether it is erroneous or not,
it becomes the law of the case [Enriquiz v. CA, 2 0 2 S C R A 487].

THE LAW OF THE CASE

The law of the case, as applied to a former decision of an

appellate court, merely expresses the practice of the courts in
refusing to reopen what has been decided. It differs from res
judicata in that the conclusiveness of the first judgment is not
st
dependent upon its finality. It relates (1 ) entirely to question of law
nd
and ( 2 ) is confined in its operation to subsequent proceedings
rd
( 3 ) in the same case [Mun. of Daet vs. CA, 93 SCRA 521, Moreno,
Phil. Law Dictionary].

Whatever is once irrevocably established as the controlling

LEGAL RULE of decision between the same parties in the same
case continues to be the LAW OF THE CASE, whether correct on
general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before
the court [People v. Pinuila, 103 Phil. 999; F.B. Moreno, id.] or when the
court's decision/judgment is not appealed and allowed to become
final, it becomes the law of the case and it cannot be set aside by
the judge [Masa vs. Baes, 28 SCRA 263].
19
 In conclusion, the Hypothesis of the Case or the Provisional
Legal theory is the tentative legal opinion of the investigating
counsel applying the rule of the law to the facts of the
case/defense; whereas, the Definite Legal theory is generally the
permanent legal opinion of the trial lawyer applying the rule/law to
the facts of the case/defense; and while the Law of the Case is
generally the irrevocable legal opinion or ruling of the court applying
clearly and distinctly the rule of law to the clear and distinct facts of
the case/defense, which became final and executory. Clearly, the
law of the case is a doctrine of irrevocability of the court's final and
executory judgment, whether correct on general principles or not.

The doctrine of the law of the case is a rule of practice and

not a principle of substantive law. It expresses the practice of the
courts generally to refuse to reopen what has been previously
decided in the same case, and is binding on every tribunal dealing
with, except one cloth with the power to overrule and finally
declare the law to be otherwise. It is founded on public policy, in the
interest of orderly judicial procedure, and is of special significance
as applied to Questions of law as distinguished from decisions on
Questions of fact fSantos vs. Ruiz, S P - 0 0 5 0 9 , 1 0 / 1 5 / 7 1 ; F. B. Moreno,
Law Dictionary].

A question of fact exist when the doubt or difference arises

as to the truth or falsehood of facts or when the query invites
calibration of the whole evidence considering mainly the credibility
of witnesses, the existence and relevancy of specific surrounding
circumstances, as well as their relation to each other and to the
whole, and the probability of the situation. A question of law exist
when the doubt or controversy concerns the correct application of
law and jurisprudence to a certain set of facts; or when the issue
does not call for an examination of probative value of the evidence
presented, the truth or falsehood of facts being admitted [Gomez v.
Montalban, G.R. No. 1 7 4 4 1 4 , March 14, 2 0 0 8 ] .

Commendably, it is a good policy for all trial lawyers: a) to

prove in court the same acts or omissions constituting a cause of
action/ accusation or defense as defined by law and as alleged in
their pleadings; b) to tackle the same factual and legal issues as
defined in the court's pre-trial order; c) to consistently rely, in the
entire period of trial (even on appeal), the same applicable rule of
law [PPA v. City of lloilo, supra]; and not on two ( 2 ) antithetical rules
of law [Noe Toledo y Tambong vs. People, 4 3 9 SCRA 95].
20
 CHAPTER 5
"Law must be reasonable
for it is reason that in fact
directs a person's acts"
St. Thomas Aquinas

"Law is reason unaffected by desire"

Aristotle

"Reason must rule in law"

Hon. Chief Justice Hilario G. Davide, Jr.

THE RULE OF LAW ANQ THE STATE OF FACTS

Law in its specific and concrete sense is a rule of conduct,

just, obligatory, and formulated by legitimate power for common
n d
observance and benefit [F.B. Moreno, Phil. Law Dictionary, 2 Ed].

The term 'laws' in Article 13 of the New Civil Code is used in

a generic sense to include the Rules of Court which now constitute
the adjective laws of the Philippines [Ng v. Republic, 57306-R, March
30, 1977, F. B. Moreno, ibid].

The ordinance of the City of Manila is a law within the

meaning of Section 43 of the General Orders No. 58 which provides
for appeal to the Supreme Court in cases involving the validity or
constitutionality of statutes [Trinidad v. Sweeny, 4 Phil. 533; F. B.
Moreno, ibid].

Law is the rule of reason applied to existing conditions

[Gubagaras v. West Coast Life Insurance Co., 1628-R, Jan. 6, 1949;
Moreno, ibid.], by the court in rendering its Judgment, or issuing final
order.

For instance, the court's reason or judgment in holding the

issuer of a bouncing check criminally and civilly liable is Sec.1 of
B.P. 22, which forms part of the law of our land [Art. 8, NCC].

21
 Some typical laws or rules of reason, or court's reasons
in holding the accused/defendant/respondent criminally and/or
civilly liable, as applied to a clear and distinct state of facts, are:

1) Art. 249, RPC + Facts = Accused/Defendant or

Respondent's Liability for Homicide;

2) Art. 283, RPC + Facts = Accused/Defendant or

Respondent's Liability for Light Threats;

3) Art. 100, RPC + Facts = Accused or Defendant's

Liability for Damages;

4) Art. 29, NCC + Facts = Accused/Defendant's

Liability for Damages;

5) Art. 2176, NCC + Facts = Defendant's Liability for

Quasi Delict,

6) Sec. 1, Rule 70, RRC + Facts = Defendant's Liability for

Eviction & Damages;

7) Sec.1, b, Rule 66, RRC + Facts = Respondent's Liability

for Forfeiture of office.

In fine, Rule of Law + Facts = Defendant's Liability.

Conversely, the Defendant's Liability = Facts + Rule of Law.

The rule of law, as exemplified in the time-honored principle

of dura lex sed lex- that the law may be harsh, but that is the law,
[Subido, 81 Phil.526; Moreno, id] and ignorance of the law excuses no
one from compliance therewith [Art. 3, NCC], must be applied strictly
to a clear and distinct state of facts of a particular case and "with
justice for that is our mission and the scheme of our Republic"
[Alonso vs. Intermediate Appellate Court, 150 SCRA 259; Art. 10, NCC].

In the absence of the applicable rule of law to the state of

facts as the action has prescribed, there is no more reason for the
accused/defendant to be held criminally or civilly liable to the public
or private complainant.

Thus, after the repeal of the Anti-Squatting Law (P.D. No.

772) on October 27, 1997 by the Anti-Squatting Law Repeal Act
22
(R.A. No. 8368), no person can be charged and/ or held criminally
liable under the said law [Read Sec. 4, R.A. No. 8368 & Sec 27 R A
No. 7279].

R.A. No. 9344 amending Art. 12 (2) of the Revised Penal

Code on March 22, 2006, a child fifteen (15) years of age or under at
the time of the commission of the offense shall be exempt from
criminal liability.

After the abolition of the Act Designating Death by Lethal

Injection [R.A.No.8177] and of the Death Penalty Law [R.A.No.7659],
as well as the related laws, decrees and orders, by R.A. No.9346,
approved on June 24, 2006 and effective on July 25, 2006, no death
penalty shall be imposed upon the accused who may be convicted of
any heinous crime.

So, when the rule of law or "the reason for the law ceases,
the law itself ceases". In Latin, this principle means rationi cessante,
cessat ipsa lex [C & G Commercial Corporation v. Committee on Awards,
62 O G 8660; 7 C.A.R. (2s) 899, ibid.]. A corollary maxim is damnum
absqui injuria or damage without injury, or injury inflicted without
injustice. There is a loss or damage but without a violation of any
legal right. There is a wrong done to a person for which the law
provides no remedy [Escano v. C.A., 100 SCRA 203; F.B. Moreno, ibid.].

In gist, if a defense is based on law, the Defendant or

Defense' Definite Legal Theory equals the Facts minus the Rule of
Law. But, if a defense is based on facts, the Defense or
Defendant's Definite Legal Theory equals the Rule of Law minus the
Facts. In this instance, the parties' definite legal theories involve
purely on questions of fact, the findings of which must be: (a)
clearly and distinctly stated in a judgment [Sec.1, Rule 36, RRC]; (b)
clearly and distinctly proved in court [Sec.1, Rule 128, RRC]; (c)
clearly, distinctly and formally offered in evidence [Sec.34, Rule 132,
RRC]; and, (d) clearly and substantially alleged in both parties'
pleadings, known as the ultimate facts [Sec.1, Rule 8, RRC].

THE ULTIMATE FACTS

Ultimate facts as defined are the facts on which the party

relies for his/her claim or defense [Sec.1, Rule 8, RRC]. It is also
known as the factum probandum, or facts to be proved by the factum
probans [De Gala v. De Gala, 42 Phil. 733; Moreno's Phil. Law Dictionary].
23
 Deduced from the following legal phrases: "material
averment made in the complaint" [Sec. 10 & 11, Rule 8, RRC]; and,
"material facts alleged in the information" [U.S. v. Borlado, 42 Phil. 72],
actually the ultimate facts [Sec. 1, Rule 8, RRC] are the material
facts. Verily, material allegations of fact are those that without
which the plaintiff would have no cause of action [La Corporation de
Padres Agustinos Recoletos v. Crisostomo, 32 Phil. 429, Moreno, ibid.].
Moreover, a fact is essential if it cannot be stricken out without
leaving the statement of a cause of action insufficient [Remitere v
Yulo, 132 Phil. 62; Moreno, id.]. Certainly, the essential facts are the
key facts [Sayco v. People, G.R. No. 159703, 3/3/08].

In sum, a statement of a cause of action or accusation in a

civil or criminal complaint is sufficient if all of the essential, key,
material or ultimate facts are present.

Taking for example the case of forcible entry, the essential/

key/material or ultimate facts would state—that the plaintiff had prior
physical possession but he was unlawfully deprived thereof by the
defendant through force, intimidation, threat, strategy or stealth
[Sampayan vs. CA, G.R. No.156360, January 14, 2005, CDSCD, pp.37-
38], and within one (1) year from the said deprivation brought an
action in the proper Municipal Trial Court [Sec. 1, Rule 70, RRC]. The
court would certainly give due course to this kind of suit.

In a suit for enforcement, one material fact is the notice of

claim for loss or damage to goods. This is a condition precedent,
the fulfillment of which must be alleged and proved by the shipper or
consignee [Federal Express Corp. v. American Home Assurance, G.R.
No.150094, 8/18/04, CDSCD, p. 532]. In this kind of suit, a case may
be dismissed for failure to state a sufficient cause of action [Sec. 1(g),
Rule 16, RRC].

A cause of accusation in a criminal action is sufficient if all of

the essential/material/ultimate facts are present. If one or two of its
elements are lacking, such complaint or information is dismissible, or
down-gradable, for failure to charge the proper offense [Sec.3 (a),
Rule 117, RRC]. Thus, the use of deadly weapon, which would
otherwise have qualified the crime, is not alleged in the information,
even if proved, may not be appreciated against the accused-
appellant [People v. Eddie Basite, G.R.No.150382, Oct.2, 2003, CDSCD,
p. 26; Par. 3, Art. 335, RPC],

24
 For violation of Sec. 6, R.A. 80 42, known as the Migrant
Workers and Overseas Filipinas Act of 1995, one material fact is-
HAVING KNOWINGLY PARTICIPATED IN THE COMMISSION OF
THE CRIME . . .In case of juridical persons, the officers having the
control of the management or discretion of their business shall be
liable [P v. Elizabeth Corpus, G.R. 148198, Oct. 1, 2003, CDSCD, p. 12].

In charges of illegal possession of firearm, it is the duty of the

prosecution to prove that the firearm is illegal, that is, to present a
witness from the firearm and explosive unit [FEU] of the Phi. Nat'l
Police [PNP] to show that the firearm in possession has not been
licensed to any person, particularly, the accused [Rene Botana v. CA
and People, G.R. No. 120650, Feb. 21, 2003, CDSCD, p. 455; P v.
Dorimon, 321 SCRA 43 (1999); Contra P v. Ramos, 222 SCRA 557
(1993)]. The absence of license to possess firearm (the essential/
key/material/ultimate fact), or for failure of the prosecution to prove
the negative element of a cause of accusation, this criminal action is
dismissible for lack of cause of accusation, or for insufficiency of
evidence [Sec. 23, Rule 119, RRC; Compare Sayco v. People, G.R. No.
159703, 3/3/08; Sec. 492, General Auditing and Accounting Manual].

While the essential, key, material, or ultimate facts shall be

averred in every pleading, other facts outside the material averment,
or omitted in a pleading (collateral maters tending in any reasonable
degree to establish the probability/improbability of the fact in issue)
are mere evidentiary facts [Sec. 1, Rule 8; & Sec. 4, Rule 128, RRC].

THE EVIDENTIARY FACTS

These facts are the factum probans, the proving facts [De
Gala case, supra], elicited for the purpose of proving or evincing the
essential, key, material or ultimate facts in a pleading [Sec.1, Rule 8,
RRC], by the party's counsel having the burden of proof.

THE BURDEN OF PROOF ON ULTIMATE FACTS AND

THE BURDEN OF EVIDENCE ON EVIDENTIARY FACTS

"Burden of proof is the duty of a party to present evidence

on the facts in issue necessary to establish his claim or defense
by the amount of evidence required by law" [Sec.1, Rule 131, RRC],

"In civil cases, the burden of proof may be on either side. It

is on the latter, if in the answer one alleges an affirmative defense,
25
 which is not a denial of essential ingredient in the plaintiff's cause of
action, but is one which, if established, will be a good defense -
i.e., an avoidance of a claim, which prima facie, the plaintiff
already has because of the defendant's own admissions in the
pleadings" [Sambar vs. Levi Strauss, 378 SCRA 364 (2002); Judge N. M.
Aguilar, Rev. Rules on Evidence, 2004 Ed., p. 107].

In Criminal cases, the burden of proof is on the prosecution

to prove beyond reasonable doubt the guilt of the accused [P v.
Abujan, G.R.No.140870, 2/11/04, CDSCD, P. 502].

On the other hand, the burden of proof is on the defense to

prove any of the justifying, exempting or mitigating circumstances
mentioned in Articles 11, 12 & 13 of the Rev. Penal Code to the
court's satisfaction [R. C. Aquino, RPC, Vol 1. 1987 Ed., p. 131]. But
there is a ruling, that "the mitigating circumstances provided for in
the Code cannot be estimated in connection with crimes punished
in special laws" [Maiquez, 47 O.G. 2455; id., p. 295].

The burden of evidence is the duty of the defendant/defense

to present evidence to controvert, impeach or disprove the proving
facts of the plaintiff/prosecution. Likewise, the burden of evidence is
on the plaintiff/ prosecution to present evidence to rebut the
controverting or impeaching facts of the defendant/defense, and
ultimately to rehabilitate it's proving facts on the ultimate facts
(affirmative allegations) upon which its claim is based. Further, the
burden of evidence is also on the defendant/ defense to present
evidence to sur-rebut the plaintiff/prosecution's rehabilitating facts
and ultimately to rehabilitate it's controverting / impeaching facts, as
well as, its own proving facts on the ultimate facts (affirmative and/
or negative defenses) upon which its defense is based.

Practically, the burden of evidence is a duty to present

evidence on the evidentiary facts in issue. It shifts from one
party to the other as the order of trial progresses; while the burden
of proof is a duty to present evidence on the ultimate facts in
issue. It remains on one side right from the initial presentation of
evidence until the trial (regular or in its reverse order) terminates.

In either way, a party's cause of action/accusation or

defense must be established by the amount of evidence required
by law [Cf. Sec. 1, Rule 131, RRC].

26
 Required by the Rules on Evidence is the presentation of
testimonial evidence to prove primarily the facts in issue. This
consists of the witness' oral testimony [Sec.1, Rule 132, RRC], or
written testimonies, such as, the affidavits [Sec. 20, RRSP], judicial
affidavits [P v. Ramos, 297 SCRA 618], depositions/answers to written
interrogatories/requests for admission [Rules 23, 24, 25 & 26, RRC],
specifically offered [Sections 34 & 35, Rule 132] for the purpose(s) of:

a) Attesting to the truthfulness of the material allegation

of facts contained in pleading, and declaring the true
statement of evidentiary facts omitted therein [Sec.1,
Rule 8; Sec.36, Rule 130, RRC];

b) Identifying the person of the accused/defendant,

including the persons acquainted with the alleged
acts / omissions complained of [Sec.36, Rule130, RRC];

c) Exhibiting to court the objects relevant to the facts in

issue [Sec.1, Rule 130, RRC.];

d) Identifying and/ or authenticating private documents

in question and proving the facts contained or
recorded therein [Sections 20-22, Rule 132, RRC];
Identifying and proving public documents [Sections 23-
30, Rule 132, RRC];

e) Giving expert opinion on a matter requiring special

knowledge, experience, training or skills (KETS)
[Sec.49, Rule, 130, RRC];

f) Giving ordinary/lav opinion on the handwriting,

identity and mental sanity of a person (HIM) [Sec.50,
Rule 130, RRC]; and,

g) Giving impressions of the behavior, emotion,

condition, or appearance of a person (BECA) [last
par., Sec.50, Rule 130, RRC].

In addition to oral or written testimony, the documentary and

object exhibits can be utilized to prove the ultimate facts in issue.
These corroborative exhibits cannot stand by themselves and have
no probative value, unless alleged (if actionable document),
attested, described, identified, and/ or authenticated by the party's
27
 witness(es) [Africa v. Caltex (Phil.), 16 SCRA 448; (Mar. 3 1 , 1966)], and
until formally offered by counsel and considered or admitted in
evidence by the trial court thereafter [Sec. 34, 35 (2), Rule 132, RRC].

After the plaintiff has completed the presentation of

evidence, the defendant may move for the dismissal on the ground
that upon the facts and the law, the plaintiff has shown no right to
relief [Sec.1, Rule 33, RRC], or "his complaint lacks a cause of
action" [Domondon v. Lopez, 383 SCRA 736].

After a full blown trial, a civil/criminal complaint is dismissible

again for lack of cause of action/accusation or for insufficiency of
evidence when its ultimate facts are insufficiently supported by the
proving evidentiary facts on records. Also, the complaint is
dismissible when the proving evidentiary facts or factum probans of
the plaintiff/ prosecution are seasonably and reasonably
contradicted by the defendant/ defense's controverting facts.

THE CONTROVERTING FACTS

These controverting facts are the adverse party's

evidentiary facts, usually elicited from the defense / defendant's
witnesses during the direct examination conducted by the counsel-
proponent having the burden of evidence, or duty to controvert the
prosecution / plaintiff's evidentiary facts.

In one case, accused Lito Limpangog did not dispute the

fact that there were three crimes committed on November 19, 1993,
but he denied his participation in any manner of those crimes. He
claimed that he was misidentified by the prosecution's witness who
did not actually know the tattoo on his left hand which he acquired
only in 1994, and who was merely told by another person about his
tattoo [P v. Lito and Jerry Limpangog, G.R.No. 141538-40, Feb.3, 2003,
C D S C D , p. 267].

In this case, the accused had the burden of evidence, or

duty to present the controverting facts of misidentification of his
identity. Fortunately, he had disproved the prosecution's ultimate
fact of his identity, and he had eventually destabilized the
prosecution's claim or prayer for his conviction.

The legal theory of the accused in this case was: the

Defense' Definite Legal Thgnry equals the Rule of Law plus the
28
Ultimate Facts minus the Accused or Defendant's Identity or
(DDLT = RL + UF - A/DI).

The following are some of the many ways in identifying an

accused or defendant:

1) For example, the voice of accused Dionesio Santiago

was identified by a witness known to him for long time [P
vs. Santiago, et/ al., G.R.No.133445, Feb.27, 2003, CDSCD p
500].

2) A person may be identified by physical build, voice and

peculiar smell - once a person has gained familiarity with
another [People v. Canete, 400 SCRA 109; Sec. 50, Rule 130,
RRC].

3) Finger prints and DNA test can be used as identification

evidence [Limpangog case, supra; citing P v. Teehankee, Jr.;
Judge Narciso M. Aguilar, Revised Rules on Evidence
Annotated, 2004 Ed. P. 216-217]. DNA (Deoxyribonucleic
acid) may be extracted from white blood cells, semen,
hair follicles, body tissue, saliva, urine, bone and teeth.
DNA print / identification technology has been advance
as a uniquely effective means to link a suspect to a
crime, or to exonerate a wrongly accused suspect, where
biological evidence has been left [P v. Joel Yatar, G.R .No.
150224; Cited in FLAG'S Primer on the Innocence Project:
Post Conviction DNA Testing in the Philippines, p.5].

4) Accused or defendant's identification cards, papers,

objects, personal belongings may lead to his/her identity.

5) The cartographic sketch gives the law enforcers a

general idea of the appearance of a suspect [P vs. Lee Hoi
Ming, G.R. No. 145337, Oct. 2, 2003, CDSCD, p.23].

The other ways of identification are: Show - ups where the

suspect brought face to face with the witness for identification; Mug
shots where photographs are shown to a witness to identify the
suspect; and Line-ups where a witness identifies the suspect from
a group of persons lined up for the purpose [P v. Arapok, 347 SCRA
479; Cited by Judge N. M. Aguilar, supra].

29
 Incidentally, there is no law requiring a police line-up as
essential to a proper identification [P v. Perez, 397 SCRA 12].

But because of corruption of out-of-court identification, the

courts have adopted the totality circumstances test in resolving
the reliability thereof, to wit: 1) the witness' opportunity to view the
criminal at the time of the crime; 2) the witness degree of attention
at that time; 3) the accuracy of any prior description given by the
witness; 4) the level of certainty demonstrated by the witness at the
identification; 5) the length of time between crime and the
identification; and 6) the suggestiveness of the identification
procedure [supra].

Identification testimony has at least three components:

1) witnessing a crime, whether as a victim or by stander, involves
perception of an event actually occurring; 2) the witness must
memorize the details of the event; and 3) the witness must be able
to recall and communicate accordingly [Limpangog case, supra].

The dangers of unreliability in eye witness testimony arise

each of these three stages, for whenever people attempt to acquire,
retain and retrieve information accurately, they are limited by
human fallibilities and suggestive influences [ibid.].

Stated otherwise, the existing conditions, circumstances or

facts of the case/defense (whether the proving or controverting
facts) are actually formed, not only by the witnesses' personal
knowledge, beliefs or opinions thereof, but are either clarified or
contaminated when these are elicited, drawn or channeled through
the counsels' logical examination of witness' personal
circumstances, or the channels of evidentiary facts.

THE CHANNELS OF EVIDENTIARY FACTS

The so-called channels of evidentiary facts may be

classified into six (6).

The first type comprises the witness' legal circumstances:

the name, AGE, gender, citizenship, religion, dialect, CIVIL
STATUS, OCCUPATION and residence. The words in capital
letters are determinative of the witnesses' disqualifications to testify

30
- b y reasons of mental immaturity, marriage, and privileged
communications [Sects. 21 (b), 22, & 24 (a, b, c, d & e), Rule 130, RRC].

The second type consists of the witness' spatial or

temporal circumstances: his/her whereabouts, location and
relative positions at the place and time in relation to the alleged
incidents, to the things around and to the persons allegedly present
therein. These are determinative of witness' opportunity of viewing
or knowing the acts/omissions complained of [Sec.1, Rule 133, RRC].

The third type includes the witness' sensual

circumstances or sensory perceptions: eyes for sight: ears for
hearing: nose for smell: tongue for taste and skin for touch. These
are determinative of the percipient witness' competency to perceive
and to convey his/her perceptions of the acts or omissions
complained of and other existing conditions of a case or a state of
facts to the court. [Sec.20, Rule 130, RRC; ESP is not legally and
judicially recognized].

The fourth type covers the witness' technical

circumstances, such as: special knowledge, skill, experience or
training on a matter in issue. These facts are determinative of
witness' expertise in giving technical opinion [Sec.49, Rule 130,
RRC].

The fifth type embraces the witness' incidental

circumstances, to wit: familiarity or acquaintance of the identity,
handwriting and mental sanity of a person, including the witness'
impressions of the emotion, behavior, condition or appearance of a
person. These circumstances are determinative of witness'
ordinary/lay opinion [Sec.50, Rule 130, RRC].

The sixth type pertains to the witness' relational

circumstances or relations with the parties, other witnesses or
persons involved in a case, by reason of Marital, Filial, Contractual,
Social and Political affinity. Affinity means tendency, inclination,
partiality, bias, liking, preference, propensity, proclivity, sympathy,
predisposition, penchant, susceptibility, hankering, appetite. Ant.,
antipathy, hostility, dislike, disinclination [The DOUBLE ROGET'S
THESAURUS in Dictionary form]. All these lead to the witness' interest
or want of interest in the result of a case [Sec.1, Rule 133, RRC]. But
relationship by itself does not give rise to any presumption of bias /
ulterior motive [P v. Montemayor, 404 SCRA 228].
31
 The above-mentioned channels of evidentiary facts may
practically be the court's bases in: a) applying the TOTALITY
CIRCUMSTANCES TEST [Arapok case, supra]; b) looking into the
human fallibilities and suggestive influences [Limpangog case, supra];
c) determining the preponderance or equilibrium of the parties'
evidences in civil cases [Sec.1, Rule 133, RRC]; and, d) finding the
innocence, or guilt of the accused by a proof beyond reasonable
doubt [Sec.2, Rule 133, RRC].

Nevertheless, the same personal existing conditions may be

used to impeach a witness of the adverse party. Those may be
referred to as the impeaching facts.

THE IMPEACHING FACTS

These impeaching facts are also the evidentiary facts, which

can be elicited from the adverse witness (or the party's witness
referred to in pars, d & e of Sec. 10, Rule 132) under cross
examination by the counsel having the burden of evidence to
destroy the credibility of such witness.

The credibility of an adverse witness may be destroyed in

three (3) ways: a) by contradictory evidence; b) by evidence of bad
reputation/character; and, c) by inconsistent testimonial evidence
[Sections 1 1 , 1 2 4 13, Rule 132, RRC].

If the credibility of the witness to be destroyed on the other

hand is that of a party's witness, it may be done in two (2) ways: a)
by contradictory evidence and b) by inconsistent testimonial
evidence [Sec.12, Rule 132, RRC]. The evidence of bad character
cannot be used. This is so, because the counsel could not have
been misled when he/she knew beforehand the bad character of
his/her own witness.

Now, whether such witness is called by the party, or by the

other party, the witness' credibility maybe elicited by asking first of
his/her whereabouts or his/her opportunity of viewing the alleged
incident.

For instance, the accused/defendant's alibi given during the

direct examination that he/she was at the other place when the
crime/act was allegedly committed could be contradicted by his/her

32
admission during the cross-examination that he/she was residing or
staying not so far away from the crime scene.

As follow up to a question regarding the whereabouts of the

witness, he/she may be asked about his/her relative position or
specific distance from the crime scene. He/she may be asked also
on the spatial or temporal conditions with respect to the facts in a
particular case.

In one case the Supreme Court held that for alibi to prevail,
the accused must establish by clear and positive evidence that it
was physically impossible for him to have been at the scene of the
crime when it happened, not merely that he was somewhere else [P
vs. Canoy, Hermenio, G.R. Nos. 148139-43, Oct. 23, 2003, CDSCD p
143].

Moreover, because of the adverse witness' contractual,

social, or personal relations, transactions with the party, with the
other witnesses or persons relative to the case on trial
(determinative of human fallibilities and suggestive influences), the
admissions made by the adverse witness in such transactions may
be utilized by the cross examiner to confront said witness against
any of the inconsistent admissions made by him/her during the
cross examination.

The admission of a witness on cross examination maybe

contradicted by his/her own admissions given during: 1) the direct
examination; 2) the pre-trial conference; 3) the confrontation at the
police station; 4) the conciliation before the office of barangay
pangkat; 5) the mediation before the office of the barangay
chairman; and/ or 6) any extra-judicial or previous admissions with
respect to the relevant facts in issue [Sec.26, Rule 130].

Witness' admission of his/her previous conviction, as for

example of the crime of falsification on cross-examination, maybe
used to prove that the witness' general reputation for truth, honesty,
or integrity is bad [Sec. 11, Rule 132, RRC]. This would then suggest
that the credibility of the witness is low.

When the witness credibility has been successfully

destroyed, and/ or the party's evidentiary facts have been duly
controverted, the party who has the burden of proof or duty to
33
prove the ultimate facts, has also the burden of evidence to present
rebuttal evidence by eliciting from the party's witness some
evidentiary facts as his/her rehabilitating facts.

THE REHABILITATING FACTS

These rehabilitating evidentiary facts maybe elicited by the

examiner-proponent during the redirect examination affecting the
witness' sensory perceptions at the time of the cross examination
and how did he/she comprehend the eliciting questions of the
cross-examiner/counsel-opponent.

Or, the party's witness maybe asked the same conditions of

his/her perceptions at the time of the direct examination and how
did he/she comprehend the direct eliciting questions of the
examiner-proponent.

Or, the party's witness maybe asked about his/her relative

position or location when the alleged admissions transpired at the
office of the police station, barangay pangkat, barangay chairman,
etc.

These rehabilitating facts may be elicited from a party's

witness during the re-direct examination or re-cross-examination by
the counsel having the BURDEN OF EVIDENCE of rebutting or
sur-rebutting against the adverse party's controverting and/ or
impeaching facts, purposely to rehabilitate his/her witness'
credibility, or to rehabilitate the credibility of one's evidentiary
fact itself [Cf. People v. Patano, G.R. N o. 129306, March 14, 2003,
C D S C D , P. 636].

These rehabilitating facts may also be elicited directly from

the party's rebuttal or sur-rebuttal witness whose personal
circumstances (legal/special circumstances, whereabouts,
sensory perceptions) are more accurate or reliable than those of
the previous witness' personal existing conditions, purposely
to rehabilitate his/her proving or controverting evidentiary facts.

In practice, some of the witness' personal circumstances of

the first type - the legal circumstances - can be utilized as the
channels of qualifying facts.

34
THE QUALIFYING FACTS

The qualifying facts include legal circumstances of the

witness—name, age, civil status and occupation. All these must
be as asked first by the court's interpreter before the counsel-
proponent may orally offer the testimony of the witness in evidence.

Without these qualifying facts, the oral offer of witness'

testimony will be objected to by the adverse counsel on three (3)
general grounds: that the witness is incompetent; that the oral offer
is improper; and that the purpose or purposes of the offer are
irrelevant.

The same oral offer of witness' testimony maybe objected to

on some specific grounds—that the witness has not been qualified
to testify; that the offer is misleading; or it lacks the foundation, or
that it has no basis.

THE RESUME: CATEGORIES OF A STATE OF FACTS

As to the rules on pleading, the state of facts of a case or

defense is of two general categories: the ultimate facts (factum
probandum) and the evidentiary facts (factum probans) [Sec. 1,
Rule 8, RRC].

As to the counsel's burden/duty, and purpose of

presentation of evidence, the state of facts of a case or defense
is of six distinct categories:

1) Ultimate Facts
These are the allegations of fact, or of acts or
omissions in the pleading, which must be proved by
the party having the burden of proof, or duty or
purpose of establishing his/her claim or defense [Sec.
1, Rule 8; Sec.1, Rule 131, RRC].

2) Proving Facts
These are evidentiary facts or statements of fact
omitted in a pleading which must be elicited from the
party's witness by the counsel having the burden of
proof, or duty or purpose of proving the ultimate facts
in issue.
35
 3) Controverting Facts
These are the evidentiary facts which must be
elicited from the party's witness by the counsel
having the duty, burden of evidence, or purpose of
controverting the evidentiary facts given by the
testimony or exhibits of the adverse party [Sec.1, Rule
8 and Sec.1, Rule 131].

4) Impeaching Facts
These are the evidentiary facts which must be
elicited from the adverse/hostile witness by the
counsel having the burden of evidence or duty, or
purpose of destroying the adverse or hostile witness'
credibility [Sec.11,12,13, Rule 132.RRC].

5) Rehabilitating Facts
These are the evidentiary facts which must be
elicited from the party's witness by the counsel
having the burden of evidence or duty or purpose of
rebutting the controverting and/or the impeaching
facts of the adverse party [Sec.1, Rule 8 & Sec.1, Rule
131, RRC].

6) Qualifying Facts
These are the evidentiary facts (witness' personal
legal circumstances) usually asked by the court's
interpreter or by counsels for the purpose of
qualifying the party's witness before the latter can
answer to the counsel's eliciting questions [Sections
2 1 , 2 2 4 25, Rule 130, RRC].

During trial, recalling any or some of the above-mentioned

categories of facts may be troublesome. As such, it maybe wise for
the examining counsel to adopt a list as a guide to the things s/he
ought to bear in mind in the course of the trial, called as the
party's written trial guide.

36
 CHAPTER 6
THE PARTY'S WRITTEN TRIAL GUIDE

A Written Trial Guide mavbe adopted by the counsel after the

court has issued a pre-trial order incorporating the actions taken
during the preliminary conference before the clerk of court and at
the pre-trial proper, the evidences marked, the stipulation of facts or
of testimony, the amendments of pleadings, the proposals for
settlement, and the definition of issues for trial, which shall control
the subsequent course of action during the trial [Sec.7 Rule18; Sec.4,
Rule 118, RRC; A.M. No. 03-1-9-SC].

This written trial guide, plan, evaluation sheet or check list for
the new lawyers is a simple, clear, and distinct listing of their:

1) Ultimate facts admitted in the pleadings and stipulated at

the preliminary and / or pre-trial conference;

2) Evidentiary facts admitted at the preliminary or pre-trial

conference (stipulations of fact), and/ or stipulations of the
(nature or tenor of) testimony, not the truth thereof;

3) Exhibits marked, their nature and their purposes;

4) Exhibits admitted as to the existence, and/ or authenticity;

5) Factual and Legal issues;

6) Witnesses, the names, the nature of their testimonies on

facts in issue, their legal or qualifying circumstances,
whereabouts, sensory perceptions, relations with the
parties, other witnesses, persons, documents, objects,
place, time, including other circumstances of the case;

7) Probable controverting, impeaching, or rehabilitating facts;

8) Researches on laws, rules and Jurisprudence, including

the principles in arts and sciences determinative or
decisive of the factual and legal issues.

37
 Equipped with his/her written trial guide, which is consistent
with the court's pre-trial order, the trial lawyer may be guided in
determining: a) whether s/he should concentrate only on the
proving, controverting, impeaching, or rehabilitating evidentiary facts;
b) what or when should s/he propound a particular question; c) when
to end his/her eliciting questions; d) whether s/he should still conduct
the direct or re-direct examination, do the cross or re-cross-
examination; and, e) whether the desired facts are already supplied
by the adverse counsel.

In obtaining a clear focus of the desired facts of the case or

defense under (not outside) a party's definite legal theory (PDLT =
Rule of Law plus or minus Facts), the examining counsel may
construct an imaginary structure of such legal theory and may adopt
the party's visual trial plan or guide.

THE PARTY'S VISUAL TRIAL GUIDE

A Visual Trial Guide may take any structural form. It may

appear like a chain of facts firmly connecting to each other from
end to end. Or it may look like a pyramid of cubes supporting the
one on its apex. Appropriately, the visual structure of a party's
definite legal theory may resemble like the skeleton of a typical
Filipino house with its strong posts: standing on solid or valid
ground(s); sustaining the girders, floor joists, studs, braces, ceiling
joists; and ultimately supporting the beams and trusses at the top.

The visual structure used by the counsel in formulating the

party's provisional theory of the case may be the same visual
st
structure to be used: 1 ) in adopting the party's definite legal theory
nd
in his/her pleading; 2 ) in recommending the client's appropriate
rd
plea upon arraignment; 3 ) in entering into a compromise
agreement on the civil aspect, in making admission or stipulation of
facts, in marking of exhibits, and in proposing factual or legal issues
th
during the preliminary or pre-trial conference; 4 ) in offering of
th
oral/written testimony of a witness; 5 ) in conducting the
th th
examination of a witness; 6 ) in formally offering of exhibits; 7 )
th
in presenting oral argument, position paper or memorandum; 8 )
th
in pursuing or defending a case on appeal; and rarely, 9 ) in
enforcing or staying a writ of execution of judgment in a case.

38
Illustration:

C/D

39
 The top portion of the imaginary structure forming like an
isosceles triangle, with three (3) sides, and one (1) altitude (see
illustration), represents the party's claim or defense relying on the
sufficiency/insufficiency of the three (3) elements of a cause of
action/accusation or defense, and constituted by the ultimate facts.
This top portion is correspondingly designated by numbers, thus:
Party's Claims / Defenses (C/D) - Nos. 1 & 2;
Ultimate facts (UF) - Nos. 3, 4, 5, 6, 7 & 8;
Elements of a cause of action/accusation - Nos. 3, 4 & 7
Elements of a cause of defense - Nos. 5, 6 & 8,
and duly supported by evidentiary facts below.

The middle portion, with the four (4) studs, exemplifies the
party's evidentiary facts: the proving; controverting;
impeaching; and rehabilitating facts (PCIRF), indicated
respectively by Nos. 9, 10, 11, & 12;

The Oral testimonies or judicial affidavits (OT/JA);

Depositions or Answers to written interrogatories (D/AWI) or
Answer to Written Requests for Admission (AWRA); the Object
or Real or Demonstrative Exhibits (O/R/DE); and the public or
private Documentary Exhibits (DE) indicated respectively by Nos.
13, 14, 15 & 16.

The girders - dividing the middle and lower portions of the

structure of the party's visual trial guide — represent the witness'
name, age, civil status, and occupation, or the Qualifying Facts
(QF) indicated respectively by Nos. 17, 18, 19 & 20.

The lower portion thereof has six [6] strong posts typifying
the six [6] types of witnesses' personal circumstances (WPC): 1)
Legal circumstances; 2) Spatial/Temporal circumstances
(whereabouts, location and relative positions); 3) Sensual
circumstances (the witness' sensory perceptions); 4) Technical
circumstances (witness' expertise); 5) Incidental circumstances
(witness' ordinary or lay opinion); 6) Relational circumstances
(witness' relations with the parties, other witnesses and persons
involved/present in a case affecting his/her interest or want of
interest).

As illustrated on page 39, these six (6) types of Witness'

Personal Circumstances (WPC) are indicated respectively by Nos.
21,22, 23,24, 25, & 26.
40
 The personal circumstances of the witness are the points of
entry of the counsel's eliciting questions, through which the desired
evidentiary facts are channeled, and wherefrom follows the
development of the party's definite legal theory - which must appear
to be strongly standing on three general legal grounds or valid
defenses, to wit:

(a) The party must have a right of action or accusation or

defense;

(b) The party's pleading states a sufficient/insufficient cause

of action or accusation or defense;

(c) The party's evidentiary facts must appear to be true or

untrue, according to the rules of admissibility or
inadmissibility of testimonial, object/real, and
documentary evidences.

As depicted on page 39, these Three (3) General Legal Grounds

or Defenses are indicated by Nos. 27, 28, & 29.

In building the party's theory of the case/defense, with his/her

evidentiary facts and in ascertaining the truth of such facts practically
rest, not on the number of witnesses, but on the quality of their
testimonies [Cf. P. v. Navarro, Jr., G.R. No. 132218, July 24, 2003,
CDSCD, p. 260 ] as logically induced by -

THE QUALITY OF EXAMINER'S QUESTIONS

These quality questions doubtlessly depend upon the

examiner's manner or efficiency of following up his/her visual or
written trial plan.

According to Atty. Jose W. Diokno, there wouldn't be no

problem during trial if the counsel follows the trial plan—the trial
guide. More importantly, s/he must know the weakness of his/her
witnesses, what to watch out for as s/he conducts the examination
and what important points to bring out. However, many young
lawyers try to show off their legal ability in court. The result is that
although they talk to their client in simple language in the office so
that the witnesses and the client understand what they are talking
about, when they go up in court, they start questioning in very
41
different language from that which they used to when they were
interviewing them. They use big words and so the result is utter
confusion [U.P.L.C., supra, p.187].

"The best tip I can give you as a practical suggestion is this:

Whatever question you used, whatever words you used in
questioning your witness in your office, use the same words in the
court. Don't surprise the witness by changing words. S/he may not
understand you. Very few lawyers follow this." [ibid.].

"They seem to think that the office and the courtroom are
different things. You win your trials in your office, and not in the
courtroom. So, tip No. 1 - don't change your language. Don't
change the wordings of your questions from the office interview to
the court. No.2 - don't ever ask of your own witness about any
exhibit that you have not discussed with him in your office. No. 3 - if
your witness is going to identify your exhibit, then you explain to your
witness all these big words that you have to go through in court to
identify an exhibit, and that it is a ritual that is practically
meaningless. "We all know the ritual. 'Do you recognize this
document?' 'Yes, Sir.' 'Why do you recognize this document?'
'Because it is a letter I received.' 'Do you recognize this signature'
Yes Sir.' 'Who's signature is this?' 'The signature of the adverse
party.' 'Why do you recognize this signature?' 'I have seen it very
often.' There is very little question about this."[id., pp. 187-188].

"So the next tip is when ever possible get admissions or

stipulations as to exhibits which will eliminate the need of this ritual
of identification in court. But there may be occasions when you want
to keep your exhibit to yourself." [id., p. 188].

At this instance, the examiner may proceed to propound

his/her questions. The objective of which is to secure admissions
from his/her witness, or adverse party's witness with respect to the
specific fact(s) in issue which he/she has already preconceived.

The preconceived fact or facts may supply the missing links

of the structure of the party's definite legal theory. It may also create
a doubtful connecting links of the adverse party's legal theory. That
missing or connecting link may be one of those under any of the six
(6) categories of facts of the case or defense which may either
strengthen or weaken the whole structure of a party's legal theory.

42
 Stated otherwise, the most prepared examiner never asks a
question which calls for an answer beyond the scope of a visual or
written trial plan, or which s/he does not know in advance a definite
answer from the witness. S/he would neither attempt to ask
questions calling for alternative answers, nor ask questions for the
sake of asking.

On cross-examination, the examiner must definitely know

that the answer of the witness would be categorically YES, or NO;
and that a witness' admission would be the desired missing or
connecting link to complete the structure of a definite legal theory.

The examiner must not permit a witness to explain a matter

of fact, unless s/he is almost sure that the probable explanation
would be the one already in his/her mind.

So, the wise examiners in any order of examination never

gamble. They never allow their witnesses to lead them to nowhere
and to establish nothing, except for the benefit of the adverse party's
theory.

The famous Socrates suggested, "ASK THE RIGHT

QUESTIONS TO A PERSON WHO HAS THE RESOURCES TO
ANSWER QUESTIONS CORRECTLY" [c469-399 B.C.; Grolier Ency. of
Knowledge].

This refers to a person who can be a credible channel of truth

and whose personal existing conditions can be the reliable sources
of evidentiary facts. Somebody who can perceive and perceiving,
can make known their perceptions to others [Sec.20, Rule 130, RRC].

The eliciting questions are right when these are

propounded to secure admissions of evidentiary facts, which are
relevant and not excluded by the law or these rules [Sec.3, Rule 128,
RRC], and proper, or with due regards to the witness' rights and
obligations (Section 3 (1-5), Rule 132, RRC).

The answers are correct when these are responsively given

to supply the missing/connecting links of the party's legal theory;
clarify the ultimate and evidentiary facts in issue; and attest
according to the purpose[s] of the oral offer of witness' testimony.

43
 Certainly, the witness' answers are correct when these
cannot be stricken off the record for being incompetent, irrelevant, or
otherwise improper [Sec.39, Rule 132, RRC].

The objects viewed by the court, or documentary exhibits,

identified and/ or authenticated by a witness are admissible in
evidence, when these are relevant to the facts in issue, not excluded
by the Exclusionary Rule [Sec.3. Rule 128, RRC], or by the Best,
Secondary, Parol Evidence Rules [Sections 3-9, Rule 130, RRC], and
the truthfulness of the facts depicted therein are properly ascertained
according to the Rules of Interpretation of Documents [Sections 1 - 1 9 ,
Rule 130, RRC].

In sum, the eliciting questions are right; and the witness'

answers—attesting to the facts in issue, identifying and/ or
authenticating the relevant exhibits, are correct when the same can
respectively withstand against the adverse counsel's legal
objections.

THE LEGAL OBJECTIONS

The Revised Rules of Court provides general and specific

grounds upon which the legal objections may seasonably be made,
thus;

Objection. - "Objection to evidence offered orally must be

made immediately after the offer is made. Objection to a
question propounded in the course of the oral examination of
a witness shall be made as soon as the grounds therefore
shall become reasonably apparent. An offer of evidence in
writing shall be objected to within three (3) days after notice
of the offer unless a different period is allowed by the court."
[Sec.36. Rule 132, RRC].

Striking out answer. - "Should a witness answer the

question before the adverse party had the opportunity to
voice fully its objection to the same, and such objection is
found to be meritorious, the court shall sustain the objection
and order the answer given to be stricken off the record. On
proper motion, the court may also order the striking out of
answers (testimonial evidence) which are incompetent,
irrelevant, or otherwise improper" [Sec.39. Rule 132, RRC].

44
 Apparently, the afore-quoted sections prescribe no rule as to
when an objection to a written testimony, deposition or affidavit
offered orally shall be made.

Accordingly, "xxx the use of affidavits of witnesses in the

direct examination in appropriate cases subject to the right of the
opposing counsel to object to inadmissible evidence and the right to
cross-examination" is allowed for the improvement of court
proceedings, pursuant to Memorandum on Policy Guidelines
formulated by and between the Office of the Court Administrator and
the IBP on March 12, 2002, Manila Philippines [Read P vs. Ramos
297 SCRA 618, 625 (Oct. 12, 1998)].

Noticeably, however, still the said Memorandum Policy

allowing the submission of judicial affidavits or even the Revised
Rule on Summary Procedure requiring the submission of affidavits of
witnesses prescribes no definite rule as to when an objection to the
allowed or required affidavits orally offered shall be made.

To fill in such legal vacuum and during the pre-trial

conference or prior to the presentation of a witness, the court may
allow the opposing counsel to immediately interpose in writing
his/her legal objections upon receipt of the proponent's judicial
affidavit.

In alternative, the trial court may direct both counsels that

any objection to a judicial affidavit or portion thereof orally offered as
direct testimony of his/her witness, duly identified, authenticated and
marked as party's exhibit in the course of direct examination by the
proposing counsel, shall be made immediately prior to the cross-
examination of said witness by the opposing counsel.

In said order, the court may further direct counsels or parties

that judicial affidavits shall be in Questions and Answers form stating
only those facts which are admissible in evidence or of direct
personal knowledge of the affiants/witnesses who are competent to
testify to the matters stated therein [Sec. 20, RRSP].

The same court order may also provide a sanction that a

violation thereof shall be a cause to expunge the inadmissible
affidavit or portion thereof from the record [Ibid].

45
 In practice, the evidences: testimonial (oral or written); real,
object, physical, or tangible; demonstrative, illustrative or autoptic;
and documentary, are offered orally or in writing by the proponent as
admissible for being competent and relevant. But the same are
seasonably objected to orally or in writing by the opponent as
inadmissible, either for being: 1) incompetent—excluded by law or
by the Rules of Court; 2) irrelevant—not related to the issues; 3)
improper—the manner of its offer or presentation is contrary to
logic, legal ethics, or general courtroom deportment.

Under any of said three (3) general grounds are the specific
grounds, but not limited to the following:

1) That the question is misleading; 2) leading 3) confusing;

4) vague; 5) ambiguous; 6) not intelligible; 7) has no
basis; 8) assumes facts not in evidence; 9) asked beyond
the scope of the preceding examination; 10) lacks the
foundation; 11) lacks of authentication; 12) calls for a
conclusion; 13) speculative; 14) calls for a cumulative
evidence; 15) compound; 16) multiple; 17) calls for the
same answer; 18) repetitive or already answered; 19)
misstates evidence; 20) misquotes witness; 21) self-
incriminating; 22) improper impeachment; 23)
argumentative; 24) that the answer to the question is not
responsive; 25) exhibit presented is excluded by the
rules; 26) a fruit of a poisonous tree; 27) covered by the
privileged communication; 28) violates the best evidence
rule; 29) violates the parole evidence rule; 30) the
document for authentication by a witness shows no
required stamp affixed thereon [Del Rosario vs. Judge
Hamoy, G.R. No. 77154, June 30, 1986]; 31) the document
presented has no signature; 32) the witness' answer is
hearsay; 33) testimony has no probative value, or no
bearing on factual and legal issues; and 34) the witness'
testimony is narrative [But this may be allowed by the
court in the interest of justice. [PP v. Canete, G.R.
No.142930, March 28, 2003, CDSCD, pp. 72-73].

[Read the 1994 Bar Question- "What is the difference between "broadside"
objection and a specific objection to the admission of documentary
evidence?", as well as, the Suggested Answer: "A broadside is a general
objection such as 'incompetent, irrelevant and immaterial', while a specific
objection is limited to a particular objection"; (Cf. Sec 39, Rule 133, RRC)].

46
THE ADMISSIBILITY / INADMISSIBILITY
AND CREDIBILITY OF EVIDENCE

"The law on Evidence involves two main problems, viz. (1)

determining whether a given piece of evidence is admissible; and (2)
the proper presentation of that evidence so that the court will
consider it in the resolution of the case unless the evidence was
properly presented. X x x. Every piece of evidence, regardless of
its nature (testimonial, object, documentary, etc.), requires certain
process of presentation for its admissibility" [The Benchbook for Trial
Court Judges, Evidence, pp. 2-3]. Hence, the propriety of the manner,
mode, sequence or process in the presentation of given piece of
evidence appears to be the third axiom of admissibility of evidence
[Sec. 39, Rule 132, RRC], in addition to the two axioms of
competency and relevancy [Sec. 4, Rule 128, RRC].

In practice, a piece of evidence is inadmissible for being

improper, incompetent or irrelevant, which must be specified [Par. 4,
Sec. 36, Rule 132, RRC]. But some lawyers further manifest that the
evidence is impertinent and immaterial, although these words are
synonymous with the word irrelevant [William C. Burton, Legal
n d
Thesaurus, 2 Ed.].

Thus, a relevant evidence is either: material when it directly

proves a fact in issue /The Benchbook for Court Trial judges, supra]; or
collateral when it merely tends to establish the probability or
improbability of a fact in issue [Sec. 4, Rule 128, RRC]; or
circumstantial when it indirectly and sufficiently proves the guilt of
the accused beyond reasonable doubt [Sec. 4, Rule 133, RRC; P vs.
Magalona, G.R. No. 143294, CDSCD, July 17, 2003, p. 187]; or
substantial, or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion in cases filed
before administrative or quasi-judicial bodies [Sec. 5, Rule 133, RRC].

The evidence may be admissible, but it is not always credible

because admissibility of evidence depends upon its competency,
relevancy and propriety of evidence, while credibility refers to the
trustworthiness or truthfulness [IV. C. Burton, id.] of a witness, or to
the weight and sufficiency of evidence given to it by the court
adopting the totality circumstances test [Sec. 1, Rule 133, RRC; P v.
Arapok, 347 SCRA 479; Supra; Cf. P v. Agrepa, 208 SCRA 589].

47
 CHAPTER 7
THE LAWYER'S BASIC FUNCTION & TASKS

The basic function of a trial lawyer is to win the case in ways

sanctioned by law. By winning a case means obtaining a favorable
judgment so that if his/her clients have suffered any harm or injury,
they may recover. And that if his/her clients have caused harm or
injury, they may not pay more than the law requires [U.P. Law Center,
Trial Techniques, 1979, p. 167].

Concomitantly, it has been recognized that the prosecuting

officer is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that one will win a case but
that justice shall be done. [Rule 6.01, Code of Professional
Responsibility].

To fulfill the said function, one has to know more than the
law. It is not enough to only convince the court that the law is on
his/her side. One must persuade the judge that it is right and just
that judgment be rendered in favor of his/her clients [Supra, p. 168].

It is not enough as the law book tells you to have a theory of

your case. You must also have an image of your case-something
that would make the judge say, "Indeed, this person is right and if
the law isn't that way, maybe I can interpret the way s/he interprets
it." This is something which young lawyers are not very familiar with
yet, it is the secret of success of the great masters at bar [Supra].

To translate this function into a concrete task, the job of a

trial lawyer can be broken up into:

First, s/he must be able to offer the admissible evidence, and

must do so in right order and at the right time for maximum
persuasive effect. S/he must prove the theory of the case or
defense, and must prove that it is inherently right for the
judge to decide the case in his or her client's favor. S/he

49
 must see that this is done by effective direct examination and
properly introducing exhibits;

Second, s/he must do the best to exclude the admissible

evidence of the opponent. S/he does this by objections and
motions to strike out;

Third, s/he must make way to expose the weaknesses of the

opponent's case. S/he can do this by having an effective
cross-examination, by impeachment and rebuttal. S/he must
also strengthen or rehabilitate any part of the party's theory
of the case/defense that the opponent has succeeded in
weakening. The lawyer can do this by re-direct and
corroborating evidence;

Fourth, s/he must preserve the record so that if the trial judge
excludes the admissible evidence, s/he can make an
appropriate offer of proof or the tender of excluded evidence
[Supra, 168 - 169; Sec. 40, Rule 132, RRC].

At the end of the trial, the lawyer must depict the stance of
the evidence and law into strongest and most persuasive picture of
the theory of the case or defense through a written memorandum, or
position paper setting forth the law and the facts relied upon by
him/her [U.P.L.C., 1979, Trial Techniques, p. 169].

The special tasks of a lawyer which must always be bear in

mind are: (1) conduct effective direct examination and present
exhibits; (2) make objections and motions to strike out; (3) cross-
examine, impeach (or controvert) and rebut; (4) redirect and
corroborate (or rehabilitate); (5) make offer of proofs; and, (6)
submit persuasive memorandum (position paper) [U.P.L.C., supra; in
parenthesis supplied].

Our task as I said earlier is to persuade the court. "But there

is a very ancient saying which says: 'Whatever you are speaking so
loudly, I can not hear what you are saying,' which means that a
lawyer must not only have the technique of presenting evidence and
persuading (the trial judge); his/her own personality must be
persuasive" [ibid.].

50
THE LAWYER'S PERSUASIVE PERSONALITY

Among the many factors which allows one to earn the

respect is to see to it that (1) the judge recognizes you as a clean
fighter; (2) the judge respects your ability as a lawyer, not only your
knowledge of the law but your judgment as well; (3) more
importantly the judge sees you as a man of integrity [ibid.].

To be as such is indubitably not easy. As in the words of

Atty. Amelito R. Mutuc, "The qualities of being a persuasive lawyer
are earned through sheer patience, conscientious and persevering
toil and hard work". [U.P.L.C. General Courtroom Department, supra, p.9]

It is plain discourtesy noL_to_.be on time for a scheduled

hearing when the presiding judge and opposing counsel are
punctual. As such, a lawyer must work hard to be on time not only
in attending his/her cases in court but to his appointments as well.
Moreover, a lawyer must also observe the dress-code that is
befitting the respect due to the courts of justice [ibid., p. 5].

Further, it is the duty of the lawyer to maintain towards the

court a respectful attitude, not for the sake of the temporary
incumbent of the judicial office but for the maintenance of its
importance, [ibid., p. 6]

Appropriate at this point is the advice from a former chief

Justice of the Supreme Court: "While attorneys should be ever be
fearless in the discharge of their duties even in the face of the hostile
court, owing, as they do owe, entire devotion to the client, and
should defend the cause and the rights of the latter with all fervor
and energy of which they are capable, their duty to the courts is no
less sacred and can only be maintained by rendering no service
involving any disrespect to the judicial office which they are bound to
uphold, the reason being that respect for the courts guarantees the
stability of their institution. Indeed, excessive language weakens
rather than strengthens the persuasive force of legal reasoning and
is not conducive to the orderly and proper administration of justice"
[ibid; citing Moran, Comments on the Rules of Court, 216 (1963)].

51
 Inevitably, there will be times that a counsel is certain that
the ruling of the judge is incorrect. What must he do? An American
State Court ruled on the matter:

"The counsel in any case may or may not be abler or more

learned lawyer than the judge, and it may tax his patience
and his temper to submit to rulings which he regards as
incorrect, but discipline and self-restrained are as necessary
to the orderly administration of justice as they are to the
effectiveness of an army. The decisions of the judge must be
obeyed, because he is the tribunal appointed to decide, and
the bar should at all times be the foremost in rendering
respectful submission."[id., pp. 6-7]

The following are some of the ethical standards which a

lawyer must observe as embodied in the Canons of Legal Ethics:

Clients, not lawyers, are the litigants. Whatever may be the

ill-feeling existing between clients, it should not be allowed to
influence counsel in their conduct and demeanor toward
each other or towards suitors in the case. All personalities
between counsels should be scrupulously avoided [Canon 17,
Canons of Legal Ethics), [ibid., p. 7]

"How to disagree without being disagreeable should be the

rule of thumb during court proceedings. How to argue, how
to drive home a point without resorting to personalities is the
mark of a cultivated man." [ibid., pp. 7-8]

"Decency and fairness to the judge, to opposing counsel, to

litigants and witnesses are the guiding norms of conduct of a
lawyer during the court proceedings." [ibid.]

"A lawyer should always treat adverse witnesses and suitors

with fairness and consideration and should never minister to
the malevolence or prejudices of a client in the trial or
conduct of a cause." [ibid.]

"Improper speech is not excusable on the ground that it is

what the client would say in speaking in his own behalf."
y
[ibid.]

52
 "Even pleadings submitted and those required by the court
on important incidents during the trial itself have a very
important and weighty effect upon the judge" [ibid., p. 9].

And it is the manner on how a lawyer argues before a court,

be it an inferior court or an appellate one, that he lays the
basis for an evaluation and appraisal of his merits and worth
as an advocate. First impressions do count and a good
impression made upon a judge might be lasting one. "[ibid.]

Atty. Jose W. Diokno added, that for a lawyer to be effective

in doing his/her task he/she must have other skills [U.P.L.C.,
Presentation of Oral and Documentary Evidence, supra, p.169].

THE LAWYER'S OTHER SKILLS

"The most important skill, and the one I have found most
lacking especially among young members of the bar, is the ability to
listen to what is being said and to understand. Every one of us, as a
human being, has the natural tendency to hear what we want to
hear. When someone says something, we generally try to interpret
it according to preconceived notions. Trial lawyers cannot afford that
luxury while they are in court. They must hear what is being said and
understand what is being said not only by the witness but by the
judge and by the adverse party. And this, of course, requires
basically patience to listen." [ibid].

"The second skill that a trial lawyer must have is the skill to
speak clearly, distinctly and understandably and, if possible, briefly.
But as long as your meaning is clear, then that is sufficient."[id, p.
170].

"The third skill that a trial lawyer must have is s/he must be
able to think on his/her feet, to make decision quickly. Sometimes
how well you are prepared, you are caught by surprise. Unless you
can think quickly, the result of your inability to cope with surprise
factor will affect for at least the rest of that session and that can
harm your client's case. Having a sense of humor, being thoughtful
of the convenience of others, remaining courteous under stress -
these are helpful qualities. Certainly, we should acquire all of them,

53
 by perseverance, constant practice, self-control and self-criticism to
become respected, persuasive and effective trial lawyers." [ibid].

The fourth skill that a trial lawyer must have is the patience to
read every document. This is one of the pieces of advice from the
famous Roman-Spanish lawyer Quintilla who wrote a book on trial
practice in 330 A.D. [id., p. 180].

"But many lawyers still go to court, present exhibits, and then

they are surprised when portions of the exhibits are read by the
opponent which contradict their own case." [id., p. 181].

In addition to the above-mentioned skills, a trial lawyer must

also have: patience to scrutinize the intrinsic or extrinsic nature of
every object to be exhibited to the court; vigilance to watch every
object or real exhibit closely to avoid replacement, misplacement, or
loss thereof; and wisdom when it is necessary to present a particular
object, real, physical or demonstrative exhibit to the court, or
whether to formally offer some or all the exhibits in evidence, or
whether to reserve them in the rebuttal or sur-rebuttal evidence.

Moreover, Atty. Jose W. Diokno stressed one thing, that "a

good trial lawyer is his own man. He is not his client's errand boy.
He is not the trial court's sycophant. He is not another trial lawyer's
copy. He is himself.' This is a cardinal rule not only for lawyers but
for every human being who expects to be a full human being." [id., p.
170].

"But (despite of those skills) you will ask: what if he himself is

not persuasive? Then, the answer is either you change yourself or
quit trial practice" [ibid; in parenthesis supplied].

In trial practice, Atty. Diokno exhorted that "the most

important consideration of all is the matter of the judge's
predilections and idiosyncrasies." [id., p. 185].

THE PREDILECTIONS AND IDIOSYNCRASIES

OF A JUDGE

"One of the most important things that a trial lawyer must

bear in mind is that s/he ought to convince the person who is sitting
on the bench. As a lawyer, one is bound to agree with the judge.
54
The lawyer may not like the judge as a person, s/he may think the
judge does not know the law, s/he may think the judge is stupid, s/he
has to set aside his/her biases because at the end of the day it will
be the judge who will decide the case. Whether the lawyer likes the
judge or not, the latter is the person whom the former has to
persuade to win the case, not the Supreme Court, neither the Court
of Appeals" [id., p. 186].

"Therefore, the most important thing for you to plan - basic

consideration in planning - is to know your judge. I do not mean to
know him/her in the sense of influencing him/her, but know him/her
in the sense of knowing his/her peculiarities, because everyone of
us is peculiar to some degree. Go to his/her courtroom and watch
how s/he tries a case, ask your companeros who have appeared
before him/her, you go to his/her clerk or stenographer and ask
about him/her", Atty. J. W. Diokno counseled [ibid.].

"Because a lawyer is going to win his/her case, s/he would

need three things: First, s/he's got to have a case, that is, the law
has got to be with his/her client. Second, s/he's got to know how to
present his/her case to the judge. You can guarantee those two
things. Third, there must be a judge who is willing to do justice, and
that you cannot guarantee." [id., pp. 186-187].

As observed, there is no guarantee of justice in the long run

except the personality of the Judge [People v. Montemayor; G.R. No. L-
29599, Jan. 30, 1969].

Does it mean that the trial judge may favor one party?

"But whenever you see that s/he is biased, then it is your

duty to disqualify him/her", Atty. Diokno advised [U.P.L.C., op. cit.,
supra, p. 187]. "/ would like to mention this because many lawyers
are reluctant to disqualify judges even though they have good
reasons to do it. My own policy on the matter is where I believe that
a judge has an open mind regardless of past connections, then, I
don't move to disqualify him/her even if I have legal grounds. But
where I feel that a judge's mind is not open anymore, if I can get a
little ground, I will squeeze it to the last drop to disqualify him/her."
[id., p. 186]. "And my research is very simple I have nothing personal
against any particular judge, but I am fighting for my client and my
client is entitled at least to an impartial judge. My client is entitled to
an intelligent judge, but if s/he cannot be intelligent, s/he must be at
55
 least impartial. So when ever I feel that the judge is impartial, I don't
care if there is a legal ground to disqualify him; even if my client
presses me to do it." [ibid]. After all, the fallibility of human judgment
is one of the facts of life [Montemayor case, supra].

But even how fallible the judge is, s/he must apply the law
to the clear and distinct facts of the case only in the right way.
not in either legal way - conceived by some students of law as the
indeterminacy thesis.

THE INDETERMINACY THESIS

Senior Justice of the Supreme Court, Hon. Leonardo A.

Quisumbing shared, that: "It has been said that many (American)
law students, even in their first year, already get a sinking feeling
when they asked themselves: 'Does the law actually make any
difference to the way cases are decided?' In later years, they
encounter the above-cited thesis, as if in reply to their doubts: 'The
laws have nothing to do with how cases come out. They are
just window dressing that skillful lawyers and judges can
manipulate any decision they please.' x x x.

[Tjhe strong indeterminacy thesis claims that in every

possible case, any possible outcome is legally correct. Or, in a more
extended way, the strong indeterminate thesis says: 'In a set of
facts about actions and events that could be processed as a
legal case, any possible outcome - consisting of a decision,
order, and opinion - will be legally correct' X x x. That's why
some practitioners say, 'knowing x x x the judge x x x is more
important than knowing the precedents' .xxx

The severe implication of the legal indeterminacy thesis may

be mitigated by our knowledge that (a) our courts of law are also
courts of equity; and (b) the rule of law is actually a rule of reason,
not a rule by law imposed by the dominant class, past or present, as
a substitute of naked force." [UP. Law Graduation Speech delivered on
4/28/08, Bench Mark, Vol. IX, No. 05, May 2008, p.7].

Therefore, we must apply to the facts of a case, not the

indeterminate letter of the law, but the determinate right and
justice intended therein by our lawmaking body [Art. 10, NCC].

56
 If one wants to become a trial lawyer expounding the clear
intent of a particular provision of the statute or constitution to the
court, s/he must read the legislative/constitutional assembly journal.

The fourth year law students will learn the rigors of law
practice by trying some of hypothetical and typical cases in a mock
trial, or by handling at least one simple case of an indigent client in
the MTC/MCTC, pursuant to Rule 138-A of the Revised Rules of
Court on Law Student Practice Rule.

THE LAW STUDENT PRACTICE RULE

rd
A law student who has successfully completed his 3 year of
the regular four-year prescribed law curriculum and is enrolled in a
recognized law school's clinical legal education program approved
by the Supreme Court, may appear without compensation in any
civil, criminal or administrative case before any trial court, tribunal,
board or officer, to represent indigent clients accepted by the legal
clinic of the law school [Sec.1, Rule 138-A, RRC]. _

The appearance of the law student authorized by this rule

shall be under the direct supervision and control of a member of the
Integrated Bar of the Philippines duly accredited by the law school.
Any and all pleadings, motions, briefs, memoranda / other papers to
be filed, must be signed by the supervising attorney for and in behalf
of the legal clinic [Sec.2, Rule 138-A, RRC].

The rules safeguarding privileged communications between

attorney and client shall apply to similar communications made to, or
received by the law student, acting for the legal clinic [Sec.3, Rule
138-A, RRC].

The law student shall comply with the standards of

professional conduct governing members of the Bar. Failure of an
attorney to provide adequate supervision of student practice may be
a ground for disciplinary action [Sec.4, Rule 138-A, RRC].

When the law students will decide to practice pursuant to the

above rule, they must observe first some of the lawyer's office
and in-court activities, read some of court's records, or transcript

57
 PART II
THE TYPICAL EXERCISES
OF INTRODUCING A
PARTY'S DEFINITE
LEGAL THEORY

"The teacher's role is primarily

a stimulator and motivator;
The learner's role is primarily an
investigator, a discoverer, and a doer."

"Maximum learning is always the result

of maximum involvement."

-Dr. Howard G. Hendricks

59
 CHAPTER 1
INTRODUCTION

The introduction of the party's definite legal theory is usually

executed by the trial lawyer in the following instances:
1) In his/her initiatory, or subsequent pleadings;
2) At the arraignment and plea;
3) During the preliminary conference before the
branch clerk of court, at court's option, and/ or
during the preliminary/ pre-trial conference proper;
4) During the oral offer of witness' testimony on the
ultimate/evidentiary facts in issue;
5) At any order of examination of witnesses;
6) In his/her formal offer of documentary or object
exhibits, duly admitted, identified and / or
authenticated by the witnesses during the trial;
and,
7) In his/her oral argument, position paper or
memorandum stating clearly and distinctly the
facts and the law relied upon, and ultimately
convincing the court of his / her definite legal
theory.

Incidentally, the party's definite legal theory may also be

introduced in part at the reception of evidence on motion [Sec. 7,
Rule 133, RRC], or partly during the tender of excluded evidence
[Sec. 40, Rule 132, RRC] which may possibly be considered on
appeal.

Even on appeal, the 8* instance, the same definite legal

theory must be introduced by the party [PPA vs. City of lloilo, G.R. No.
109791, July 14, 2003, CDSCD, p. 100].

It is a matter of law that when a party adopts a particular

theory in the court below, s/he will not be permitted to change the
theory on appeal [Noe vs. People, G.R. No. 158057, 9/24/04, CDSCD, p.
796]. Neither will s/he be allowed to invoke two defenses at the
same time: self-defense under Art.11, par.1, RPC, and accident
under Art. 12, par. 4, RPC, because said defenses are intrinsically
61
antithetical. There is no such defense as accidental self-defense
in the realm of criminal law [ibid.]. Nor, to assert a defense of alibi
together with a defense of one's right to real property [People v.
Besere, MCTC (Tubay-Santiago, Agusan del Norte), Crim. Case No.2707,
December 28, 2005].

In a forcible entry case, the allegation of force, intimidation,

strategy, threat or stealth is antithetical to plaintiff's admission that
the case is a matter of boundary dispute, as the "decision thereon
should be based on the result of the relocation survey to be
n c l
conducted by a surveyor [Junio v. Judge Mananzan, 2 D., Adm.
Matter N0.68-MJ, Feb. 25, 1975, per Fernandez, J., Monthly Digest of
Supreme Court Decisions, p.13].

th
Rarely, at the stage of execution of judgment, the 9 or last
instance in the execution of the party's legal theory, either of the
parties is not permitted to change his/her legal theory of the case or
defense originally considered during trial stage.

In one case of unlawful detainer, the defendants' claim of

good faith - as their legal basis for reimbursement of expenses
which they incurred in improving the subject land — was denied by
the court because such claim was diametrically antithetical to their
original theory of defense, a claim of ownership of the land. Thus,
a writ of execution of judgment was enforced, and the defendants
were ejected from their land without the reimbursement of expenses
they claimed [Jamandre v. Buyan, MCTC, Magallanes-Las Nieves,
Agusan del Norte, Civil Case No.142, October 3, 2006].

Of the above eight or nine instances, the 3rd and 5th thereof
are most critical, as these are the stages of building and
demolishing the parties' definite legal theories. These are the
instances when the counsels' arts of handling and presenting their
testimonial, documentary or object evidence are being tested.

To prepare and pass such test, under God's guidance, the

lawyers/practicing law students may pose for a while, meditate and
pray together with the presiding judge, the Ecumenical Prayer For
the Courts, to quote:

"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, and do will be in
62
 accordance with Your will. Enlighten our minds, strengthen
our spirit, and fill our hearts with fraternal love, wisdom, and
understanding, so that we can be effective channels of truth,
justice, and peace. In our proceedings today, guide us in the
path of righteousness for the fulfillment of Your greater glory.
Amen."[SM-MC NO.001-2001].

Then, they must be prepared with their trial techniques: (1)

the written trial plan (bill of materials); and (2) the visual trial guide,
or the imaginary structure of the party's definite legal theory (building
plan) [see, p. 39].

And they must be ready to perform some of the following

lawyers' in-court activities, such as: the appearances;
manifestations/motions; admissions or stipulations of facts; offer of
witnesses' testimonies; examination of witnesses; presentation and
identification of object exhibits; presentation and identification and/or
authentication of documentary exhibits; offer of exhibits (oral or in
writing); objections; tender of excluded evidence; demurrer to
evidence; evidence on motion, either on affidavits or oral
testimonies; recall of witnesses; and, submission of memoranda or
position papers.

Some of the afore-stated lawyers' in-court activities are

dramatically and skillfully performed in the course of introducing the
party's definite legal theory during arraignment and plea.

THE ARRAIGNMENT AND PLEA

For instance, the RTC, Br.1 (Family Court) is in session:

Court Call the case.

Court Interpreter (Reading the caption of the case)

PP vs. Judas Aba Y. Kada,
Crim. Case No. 8307 For:
Attempted Homicide. This is for
arraignment.

Court Ready?

63
 nd
Pub. Prosecutor 3 Asst. Provincial Prosecutor
Carlo B. Calbo, your honor.
Respectfully appearing for the
prosecution, your honor, I am
ready. The victim is 17 years
old.

Defense Counsel Atty. Caloy C. Ustillo, your

honor, respectfully appearing
for the defense. We are ready
for the arraignment of the
accused, your honor.

Court Arraign the accused.

Court Interpreter (Reading the Information to the

accused in local dialect)

Court (To the accused)

Question Do you understand the

allegation of facts in the
information just read to you?

Answer Yes, your honor.

Q Were you explained by your

counsel the nature and cause
of accusation against you?

A Yes, your honor.

Q Were you also explained by

your counsel the
consequences of your plea to
the offense charged?

A Yes your honor.

Q Then, what is your plea?

A Not guilty, your honor.

64
 Court Interpreter The accused pleads not guilty,
your honor.

Court Let the plea of not guilty be

entered in the record,
and the pre-trial be set on
September 4, 2006 at 2:00
P.M.

Defense Counsel I am available only on

September 11, your honor.

Prosecutor It's all right for me, your honor,

September 11.

Court Order later. Call the second

case.

Court Interpreter: (Calling the second case)

People vs. Sexto M. Aniac,

Crim. Case No. 007, For:
Simple Rape. This is also for
arraignment

Court Appearances?

Prosecutor The same appearance for the

prosecution, your honor.
Incidentally, we are not ready.
With the indulgence of the
distinguished counsel for the
accused, and of this honorable
court, I respectfully move to
reset the arraignment of herein
accused to another date,
because I am contemplating to
amend the information from
simple rape to qualified rape,
your honor.

65
Defense Counsel Atty. Caloy C. Tillo, appearing
for the accused in this case,
the victim's step-father, your
honor. And I am ready for the
arraignment, your honor.
However, I am interposing my
vehement objection, your
honor, to the resetting of
today's arraignment, because it
violates the constitutional right
of the accused to a speedy
disposition of his case, as
provided under Sec.16, Art.Ill,
1987 Philippine Constitution.

Prosecutor The concept of speedy

disposition of cases is a
relative term, your honor
[Caballero v. Alfonso, Jr., 153
SCRA 163 (1987); J. Moreno's
Law Dictionary]. Besides, a 10-
day delay in amending the
information by adding the
phrase, "with the use of a
deadly weapon", is justifiable,
your honor. Hence, a 30-day
postponement of the
arraignment is still reasonable.

Defense Counsel Such amendment, your honor,

is impractical. Even granting
that the alleged rape was
committed by the accused with
the use of a deadly weapon,
and if the accused herein
would be found guilty
thereafter, the penalty of
reclusion perpetua to death
shall not be imposed as the
death penalty was already
abolished by R.A. No. 9326

66
 last June 24, 2006, which took
effect on July 25, 2006

Court The prosecutor's motion is

denied for lack of merit. Arraign
the accused.

Prosecutor I submit your honor.

Assuming that the defense is the one not ready for

arraignment:

Defense Counsel Atty. Caloy C.Tillo, your honor,

appearing for the accused in
this case. Incidentally, I am not
ready. Your honor. This is my
first time to take hold of the
record of this case, and I have
to apprise my client first as to
the cause of accusation
against him. So, I respectfully
move your honor please, to
reset the arraignment of my
client to another date.

Court Any objection?

Prosecutor I understand the predicament

of the defense counsel, your
honor.

Court The motion being meritorious,

reset the arraignment of the
accused to another date. Call
the third case.

Assuming that the accused in the first case desires to change

his plea:

Defense Counsel Your honor, before calling the

third case, accused Judas Aba
in Criminal Case No.8307 for
67
 Attempted Homicide would like
to withdraw his plea of not
guilty to a plea of guilty to a
lesser offense.

Prosecutor I confirm the manifestation of

counsel, your honor. In fact,
the parents of victim-minor had
intimated to me awhile ago and
they consented to the proposal
that the accused will plead to a
lesser offense, or the crime of
slight physical injuries, with a
fine of Php 200.00 only.

Court Are you sure of that proposal

prosecutor?

Yes, your honor. This is by

mutual agreement of both
parties, your honor. Besides,
the victim's parents are asking
the sum of Php 15,000.00 only,
Prosecutor your honor.

Call the case for re-

arraignment.

(Calling Crim. Case No. 8307

for Attempted Homicide)
Court
Appearances?

Court Interpreter The same appearance, your

honor, we are ready.

Court The same appearance, your

honor, we are ready.

Prosecutor Alright, re-arraign the accused.

Defense Counsel
68

Court
 Court Interpreter (Reading again the information
to the accused)

Court (To the accused)

Q Are you withdrawing your

previous plea of not guilty to
the crime charged against you?

A Yes your honor.

Q Were you explained by your

counsel the consequences of
your present plea?

A Yes your honor.

Q Then, one last question, what

is your definite plea?

Guilty your honor.

Assuming that the same accused wants to apply for probation:

Defense Counsel Your honor please, after a

cordial conference with the
prosecution, the accused is
intimating to change his plea of
not guilty to guilty to the
offense as charged in the
information. The accused is
contemplating also to avail the
benefits of the Probation Law,
your honor.

Prosecutor We confirm that your honor.

Court Call again Crim. Case No.8307

for Attempted Homicide.
Court Interpreter (Calling the case, and reading
again the information to the
accused)

Court (To the accused)

Q You are withdrawing your

previous plea of not guilty?

A Yes your honor.

Q Were you explained by your

counsel the consequences of
your plea in this re-
arraignment?

A Yes, your honor.

Q What is your plea?

A Guilty, your honor.

Prosecutor Considering that the penalty for

Attempted Homicide is Prision
Correccional and the
imposable penalty, after
appreciating 1 mitigating
circumstance of plea of guilty,
is 6 month and I day to 2 years
and 4 months, I am
recommending a maximum
penalty of 1 year imprisonment
and a minimum of 4 months
and 1 day (within the range of
arresto mayor) of the
indeterminate sentence law.

Defense Counsel So, my client will be sentenced

to suffer a penalty of four (4)
months and one (1) day as the
minimum to one (1) year
imprisonment as
the maximum penalty of the
70
 indeterminate sentence law. In
that case, we submit, your
honor. We also pray, your
honor, that after the
promulgation of the sentence,
we will be filing a petition for
probation.

Court You may file it counsel. What

about the damages?

Defense Counsel We have offered the sum of

Php 15, 000, 00, your honor.

Prosecutor We have accepted the

defense' offer, your honor.

Court Order later. Set the

promulgation of sentence and
the hearing of the petition for
probation on December 18,
2006 at 2:00 p.m. Let the
parties and counsels sign the
records.

Assuming that the accused asserts for one more mitigating

circumstance of voluntary surrender:

Court Call the case.

Court Interpreter Reading the case of People vs.

Judas Aba Y. Kada, Crim.
Case No. 8307, for: Attempted
Homicide.

Court Appearances?

Defense counsel Respectfully appearing for the

accused, your honor. We are
ready to present our evidence
on motion, your honor. In the
71
 previous setting for
arraignment, we solicited from
the honorable prosecutor to
admit the fact that my client
went to PNP Nasipit, Agusan
del Norte, four (4) hours after
the alleged stabbing incident,
and surrendered to the Chief of
Police, your honor. Now, we
have Spo1 Joel T. Cruz ready
to testify and identify his
affidavit, as well as, the police
blotter showing such fact of
surrender.

Prosecutor Appearing for the prosecution,

your honor. To abbreviate the
proceedings, we are now
nd
admitting the 2 mitigating
circumstance of voluntary
surrender of the accused to the
Chief of Police, PNP, Nasipit,
Agusan del Norte. I talked to
SP01 Cruz, your honor, I read
his affidavit and verified the
Police Blotter. I found out that
his explanations regarding the
erasures on its face are
satisfactory, your honor.

Defense Counsel With that admission, your

honor, we respectfully move
that the accused' voluntary
surrender be considered as the
second mitigating circumstance
in his favor, and that the
imposable penalty for the crime
as charged will be arresto
mayor \n its medium period.

Court So, we will limit the introduction

of prosecution's evidence on
damages only.
72
Prosecutor As to damages, we are ready
to present our receipts of
medical expenses, your honor,
unless the accused will pay the
private complainant the amount
of Php 16,000.00, your honor.

Defense Counsel My client can pay only Php

8.000.00, your honor.

Prosecutor Your honor, that Php 8,000.00

is not enough to defray our
expenses for medicines. For
the litigation expenses, your
honor, the complainant had
already spent the amount of
Php 10,000.00, more or less.

Court May the parties stipulate the

sum of P 12,000.00 damages?

Prosecutor We can not agree your honor.

Defense Counsel In that case, I respectfully

move to this honorable court to
render a partial judgment on
the criminal aspect, your honor,
and to set the trial for the
determination of the amount of
the plaintiff's damages, or the
accused' civil liability.

Court Comment?

Prosecutor No objection, your honor.

Court Set the promulgation of

sentence and the presentation
of prosecution's evidence on
damages on December 11,
2006 at 2:00 p.m.

Court Call the third case.

73
Court Interpreter: (Calling the third case)

People vs. Kain E. Adam, Crim. Case No. 001 for: Murder. This is
also set for the arraignment of the accused, your honor.

Court Appearances?

Private Prosecutor Atty. Armand T. Cuz of Am bray

& Cuz Law Offices, 55 St.
Sampaloc, Metro Manila,
appearing for the victim
Abelario A. Evan as private
prosecutor, we are ready for
the arraignment of the
accused, your honor.
rd
Public Prosecutor 3 Asst. Prov'l Prosecutor
Carlo B. Calbo appearing for
the people, we are ready, your
honor.

Defense Counsel Atty. Caloy C. Ustillo, your

honor, respectfully appearing
for the accused, we are ready.
My client, your honor, after
a thorough discussion, has
finally resolved to plead guilty
to the offense as charged.
Although he is out on bail, and
resting in his fully
airconditioned room, still he
could not sleep well, your
honor. He has been disturbed
by the stabbing incident.

Public Prosecutor Any way, your honor, the court

may conduct a searching
inquiry into the voluntariness
and full comprehension of the
consequences of the accused'
plea, and may require us to
prove his guilt and the precise
degree of culpability. Then, the
accused may present evidence
in his behalf, as allowed under
Sec.3, Rule 116, Revised
Rules of Court, your honor, or
pursuant to Section 4 of said
rule, as the penalty for murder
is now afflictive [R.A.No.9346].

Notwithstanding of said act,

murderis still a capital offense.
The said law merely suspends
the imposition of death penalty,
"xxx while the new law
prohibits imposition of death
penalty, the penalty provided
by law for a heinous offense is
still death and the offense is
still heinous." [P v. N. Salome,
G.R. No.169007, Aug.31, 2006;
Cited by Janice R. Erni, Bench
Mark, Vol. VII, No.9, Sept. 2006,
Col.4, p.2]. Legally, the
reception of prosecution's
evidence is mandatory on the
part of this court. So, arraign
the accused.

(Reading the Information to the

accused).

(To the accused). Did you

understand all the allegations
of fact in the Information?

Yes, your honor.

Were you explained by your

counsel the consequences of
your plea? That your plea of
guilty to the offense charged
will not be considered as a
 mitigating circumstance as
provided under Article 63 of the
Revised Penal Code?

Accused Yes, your honor.

Court That you will suffer a penalty of

reclusion perpetual Or you will
be imprisoned, at least, for
thirty (30) years? [See R.A
No.9346 & CA. No. 217].

Accused Yes, your honor.

Court Are you guilty, or not guilty to

crime of Murder charged
against you?

Accused Guilty, your honor.

Court No body forced you, or

convinced you to plead
guilty?

Accused No one, your honor, except my

own conscience.

Court Let the plea of guilty be

entered in the record. Order
later. Call the other case.

After calling the other case, the accused-minor may inform

the court to plead guilty to the crime as charged against him/her and
to avail the benefits under R.A. No.9344; Or move for a bill of
particulars, the production or inspection of material evidence in
possession of the prosecution, suspension of arraignment; Or he/
she may manifest to withdraw his/her improvident plea of guilty, or to
enter a plea bargaining to a lesser offense despite of the absence of
the offended party [Sections 1(f), 5, 9, 10 & 11, Rule 116, RRC].

But if the accused refuses to be arraigned or to enter his/her

plea, the court can order the entry of plea of "not guilty" in his/her
behalf, as the accused cannot hold hostage the court by his/her
76
refusal of the reading of the complaint or information or refusal to
plead to the offense as charged, and the accused cannot complain
later about lack of arraignment [P v. Dy, Et al., G.R. Nos. 115236-37,
Jan. 16, 2003; CDSCD, P. 52].

And, if the accused voluntarily enters a plea of not guilty,

then the court shall issue an order according to a suggested format,
Annex "E" of A.M. No.03-1 -09-SC:

(Caption omitted)
/

ORDER

Upon arraignment, the accused pleaded not guilty.

The pre-trial of this case is set on at

. The public prosecutor, the private
complainant, the accused and their counsels are required to attend
the same.

The parties and their counsels are ordered to attend a

preliminary conference before the Branch Clerk of Court on
at to mark the documents
and substituted copies to be attached to the records after
comparison, list exhibits to be presented and to consider other
matters as may aid in its prompt disposition. Such pre-marking shall
be adopted during the pre-trial.

The parties are reminded that no evidence shall be allowed

and offered during the trial other than those identified and pre-
marked during the pre-trial except when allowed by the court for
good cause shown.

SO ORDERED.
th
Done, this 4 day of December 2006, City of Butuan,
Philippines.

JUDGE

77
 THE PRELIMINARY CONFERENCE

The preliminary conference of a case may be referred to the

Branch Clerk of Court, if warranted. The conference shall be set at
least three days prior to the pre-trial to mark the documents or
exhibits to be presented by the parties. The copies thereof shall be
attached to the records after comparison. It is also an appropriate
time to consider other matters to aid in its prompt disposition of the
case [1(B.2.b), A.M.No.03-1-09-SC].

The proceedings during the preliminary conference shall be

recorded in the Minutes of Preliminary Conference to be signed by
both parties and counsels [1 (B.3), A.M.No.03-1-09-SC].

The above circular provides a legal form of the Minutes of

Preliminary Conference to be prepared by the BCOC to be used in
civil and criminal cases, Annex "B", denominated as:

(Caption omitted)

MINUTES OF PRELIMINARY CONFERENCE

For the prosecution: For the Defense:

Assisted by: Assisted by:

Marking of Documentary Evidence:

For the Plaintiff/Prosecution: For the Defendant/Accused:

1. 1.
2. 2.
3. 3.
4. 4.

78
Genuineness and Due Execution Admitted:

For the Plaintiff/Prosecution: For the Defendant/Accused-

1. 1.
2. 2.
3. 3.
4. 4.

Listing of Witnesses and Object Evidence:

For the Plaintiff/Prosecution: For the Defendant/Accused:

Witnesses: Witnesses:
1. 1.
2. 2.
3. 3.
4. 4.

Object Evidence:

For the Plaintiff/Prosecution: For the Defendant/Accused:

1. 1.
2. 2.
3. 3.
4. 4.

Possibility of Settlement:

Stipulation of Facts:

Other Matters:

79
 CONFORME:

Plaintiff/Prosecution Defendant/Accused

Assisted by: Assisted by:

Prepared by:
Branch Clerk of Court

The said minutes and exhibits discussed and presented,

respectively during the conference shall be attached to a case
record before the judge conducts the pre-trial [A.M. No.03-1-09-SC].

THE PRE-TRIAL CONFERENCE AND PRE-TRAL ORDER

This proceeding is mandatory in both civil and criminal

cases. It considers the possibility of plea bargaining, amicable
settlement, stipulation of facts and issues, marking of exhibits, and
all maters which may aid the prompt disposition of the action
[Sections 1 & 2, Rule 18 & Sec. 1, Rule 118, RRC].

Within 10 days after the termination of the Pre-Trial, the trial

judge shall issue a Pre-trial Order setting forth the actions taken
during the pre-trial conference. It shall bind the parties, limit the trial
to matters not disposed of during the pre-trial, and control the
course of the action during the trial [A.M. No.03-1-09-SC].

The above circular provides a sample Pre-trial Order in both

civil and criminal cases,"ANNEX "D", hereto copied:

Caption Omitted
x x

PRE-TRIAL ORDER

I. Summary of the case

II Preliminary Matters
A. Amendments allowed in the pleadings

80
 B. Ruling on all objections to or comments
admissibility of any documentary or o f r
evidence.
C. Other matters taken up in conference not
covered by the subsequent items and actions
taken thereon.

III. Statement of the Facts

A. Admitted (ultimate facts)
B. Disputed:
1. Version of the Plaintiff
2. Version of the Defendant

IV. Issues to be Resolved

A. Factual
B. Legal

V. Applicable Laws

VI. Evidence of the Parties

No evidence shall be allowed to be presented and

offered during the trial in support of a party's
evidence-in-chief other than those that had been
identified below and pre-marked during the pre-trial.
Any other evidence not indicated or listed below shall
be considered waived by the parties. However, the
Court, in its discretion, may allow introduction of
additional evidence in the following cases: (a) those
to be used on cross-examination or re-cross-
examination for impeachment purposes; (b) those
presented on redirect examination to explain or
supplement the answers of a witness during the
cross-examination; (c) those to be utilized for rebuttal
or sur-rebuttal purposes; and (d) those not available
during the pre-trial proceedings despite due diligence
on the part of the party offering the same.

All documentary evidence have already been pre-

marked and copies thereof, after comparison with the
original, have been given the other party or such
party has been given an opportunity to examine the

81
 same in cases when generating copies proves
impractical.

A. Evidence of the Plaintiff

1. Documentary Evidence
a) Exhibit
(1) Title
(2) Brief Description
(3) Purpose
b) Exhibit
(1) Title
(2) Brief Description
(3) Purpose

2. Testimonial Evidence
a) Name of First Witness
(1) Purpose of the testimony
(2) Estimated Length of testimony
b) Name of Second Witness (if any)

3. Other evidence (object, real, or

demonstrative)

A. Evidence of the Defendant

1. Documentary Evidence
a) Exhibit
(1) Title
(2) Brief Description
(3) Purpose
b) Exhibit
(1) Title
(2) Brief Description
(3) Purpose

(Additional documentary evidence shall be similarly presented)

2. Testimonial Evidence

a) Name of First Witness

(1) Purpose of the testimony
(2) Estimated length of testimony

82
 b) Name of Second Witness
(1) Purpose of testimony
(2) Estimated length of testimony

(Additional witnesses shall be similarly presented)

3. Other Evidence (object/ real/ physical)

VII. Hearing Dates (shall be strictly followed and all

postponements by either party shall be deducted
from such allotted time to present evidence).

A. Schedule of Plaintiff's Presentation of Evidence

Hearing Dates
1. Testimony of Plaintiff -
2. Testimony of Mr. -
3. Testimony of Ms. -
4. Offer of Exhibits & Ruling -

B. Schedule of Defendant's Presentation of Evidence

Hearing Dates
1. Testimony of Defendant -
2. Testimony of Ms. -
3. Testimony of Mr. -
4. Offer of Evidence of Plaintiff & Ruling -

C. Schedule of Rebuttal Evidence

Hearing Dates
1. Testimony of Mr. -
2. Offer of Additional Evidence & Ruling -

D. Schedule of Sur-rebuttal Evidence

Hearing Dates
1. Testimony of Mr./Ms -

2. Offer of Additional Evidence & Ruling

E. Filing of Memoranda (Position Paper) -

F. Decision -

It is understood that the testimony of the witness

should be completed on the scheduled date of
83
 hearing allotted to said witness under the One-Day
Examination of Witness Rule. The court however has
the discretion on whether or not to extend the direct
and/or cross-examination of witnesses for good
cause shown.

IV. Failure of the party or his counsel to comply with the

aforementioned schedule of hearings and deadlines
may be a ground for the imposition of fines and other
sanctions by the court.

SO ORDERED
th
Done this 10 day of 2007, , Philippines.

JUDGE

[Note: Regarding summary cases, some lawyers are suggesting

that only the judge shall conduct the preliminary conference. Then
the judge shall issue the Pre-Con Order, not the Pre-Trial Order].

Thereafter, whether a regular or a summary case, the

plaintiff/prosecution initially presents its evidence and calls its first
witness. After swearing in and qualifying the witness by the court
th
interpreter, then the fourth (4 ) instance of introducing the party's
definite legal theory ensues.

THE OFFER OF WITNESS' TESTIMONY

The offer must be made at the time the witness is called to

testify, and the purpose for which the evidence is offered must be
specified [Sec.34 & 35, Rule 132, RRC] and relevant to the ultimate and
evidentiary facts in issue, as defined in the Pre-trial Order.

For instance, after calling the five cases of P vs. Vector I.

Cruz, docketed as Criminal Case Nos. 12307-11, for Violation of
B.P. 22, the plaintiff or prosecution's counsel manifested, thus:

Court Appearances?

84
Pub. Pros. Appearing for the prosecution,
your honor, we are ready.
Priv. Pros. Respectfully appearing as
private prosecutor, your
honor.

Def. Counsel Respectfully appearing for the

accused, we are ready to
receive the prosecution's
evidence, your honor.

Court Call the first witness for the

prosecution.

Priv. Pros. We are calling to the witness

stand our only witness, Mr.
Lucio L. Talo, the private
complainant, your honor.

Court Swear in the witness.

Do you swear to tell the truth,

the whole truth and nothing but
Court Interpreter the whole truth in these
proceedings?

(Raising his right hand) Yes I

do.
Witness
Please state your name, age,
civil status, occupation and
other personal circumstances.
Court Interpreter
I am Lucio L. Talo, 53 years
old, businessman, married and
a resident of 55 St. Aquino
Subd., Butuan City.
Witness
Pub. Pros. We will just delegate to the
private prosecutor, your honor,
the conduct of the direct
examination under my control
and direct supervision.
85
 Court Your witness.

Priv. Pros. With the kind permission of this

Honorable Court.

Court Proceed.

Priv. Pros. This witness, your honor, is

being presented to testify the
following (purposes): that he is
the complainant in these cases.
He knows the accused who
issued sometime in July 1999
five (5) checks of different
amount. Upon presentment of
said checks for encashment
with the drawee bank, the
same were returned to the
private complainant with the
notation account closed and
were dishonored by the bank.
The complainant made a
demand from the accused to
make good of check but got
only his promises. Because of
the failure of the accused to
make good of the five (5)
checks, the private complainant
was constrained to enforce his
right. He will identify his
affidavit-complaint and the five
(5) checks issued which
bounced; and, on other related
matters, your honor.
,h
After the above offer, the fifth (5 ) instance of introducing
the Party's Definite Legal Theory follows. The counsel may now
proceed to examine the witness or witnesses.

86
 CHAPTER 2
THE EXAMINATION OF WITNESSES

The Presentation of Plaintiff / Prosecution's Evidence (or its

proving evidentiary facts) is initially done in the First order in the
examination of an individual witness, or the direct examination by
the proponent [Sec. 4(a), Rule 132, RRC], or the stage of examination-
in-chief of a witness by the party presenting him on facts which are
relevant to the issue [Sec.5, Rule 132, RRC].

DIRECT EXAMINATION

This is also the plaintiff / prosecution's duty or burden of

proof (not its burden of evidence) to elicit from its witness(es) the
proving evidentiary facts in order to support the ultimate/evidentiary
facts in issue, as defined in the Pre-trial Order, in accord to the
purposes stated in the oral offer of witness' testimony, thus:

Priv. Pros. May I proceed, your honor?

Court Proceed.

Priv. Pros. (having the burden of proof, is

presenting his evidence;
conducting the direct
examination of his first witness;
and eliciting his proving
evidentiary facts), thus:

Q-1 Mr. Talo, are you the same

Lucio L. Talo, the private
complainant in these five (5)
criminal cases?

A Yes, sir.

Q-2 Who is the accused in these

cases?

87
 A The accused is Mr. Vector I.
Cruz, sir.

Q-3 Why do you know him?

A He is my adjacent neighbor at
55 St., Aquino Subd., Butuan
City, sir.

Q-4 Is accused Vector I. Cruz in

court?

A No, sir, he is not around.

Why are you filing these cases

Q-5 against said accused?

Because he refused to make

A good his five (5) checks which
he issued to me and which
bounced, sir.

Q-6 What did you do thereafter?

A I sought your legal assistance

and I signed my affidavit-
complaint in connection with
these cases, sir.

Q-7 Where and when did you sign

your said affidavit?

A At your law office, sir, located

th
at 4 St., Brgy. Talong,
Cabadbaran, Agusan del Norte
on November 28, 2000.

Q-8 Attached to this record is an

affidavit-complaint marked as
Annex "A", please examine this
carefully whether this is the
very affidavit which you have
signed?
88
A That's mine, sir.

Q-9 Why do you say that this

affidavit is yours?

A I affixed my signature above

my printed name there, sir.

Priv. Pros. We respectfully manifest that

this affidavit-complaint of
Lucio Talo was previously
marked as Exhibit "A", and the
signature above the typewritten
name Lucio P. Talo was also
marked as Exhibit "A-1", during
the pre-trial conference, your
honor. But only the existence of
this affidavit was admitted by
the defense. May I proceed,
your honor?

COURT Proceed.

Priv. Pros. (further conducting his direct

examination)

Q-10 In your affidavit, you stated

here that the accused issued in
your favor five (5) checks, will
confirm to the truthfulness of
this statement of yours?

A Yes, sir.

Q - 11 What happened to those five

checks you mentioned therein?

A When I deposited these checks

with the drawee bank, these
were returned to me by the
bank's teller with stamp
marked-CLOSED ACCOUNT.

89
Priv. Pros. We respectfully pray that the
five (5) checks listed in the
affidavit-complaint with the
corresponding amounts and
dates be encircled and marked
as Exhibit "A-2" for the
prosecution, your honor.

COURT Mark it.

Priv. Pros. And the words account closed

in answer to question No. 5 be
underlined and marked as
Exhibit "A-3".

COURT Mark it.

Priv. Pros. (continue conducting the direct)

Q - 12 Where are these five (5)

checks now, Mr. Witness?

A I have with me, sir.

Priv. Pros. Your honor, this witness

handed to this representation
the following checks which are
the subject matters in these
five (5) cases, your honor.
Check No. 0097712 dated
June 22, 2000 in the amount of
P9.000.00 paid to Vector
Talo/Cash, we respectfully
pray, your honor, that this
particular check which is one of
the subject matters of the five
cases be marked as Exhibit
"B".

COURT Mark it.

90
Priv. Pros. (con't)

Q - 13 There is a signature here Mr.

Cruz, this one, whose signature
is this?

That is the signature of Vector

I. Cruz.

Q-14 He signed this check, Exh. "B",

in your presence?

Def. Counsel Objection, your honor, the

question is leading.

COURT Sustained, Reform the

question.

Priv. Pros. (Continue conducting).

Q - 15 Why do you say that this is his

signature?

He affixed that signature in

front of me.

Priv. Pros. We pray, your honor, that the

signature of accused Vector I.
Cruz be marked as Exhibit "B-
1", your honor.

COURT Mark it

Priv. Pros. Another check handed by the

complainant to this
representation, your Honor,
which is among the checks
listed in Exhibit "A" is Banco
Filipino Check No. 0097709 in
the amount of P19,050.00
dated June 28, 2000. We
respectfully request, your
Honor, that this particular
91
 check be ordered marked as
Exhibit "C".

COURT Mark it.

Priv. Pros. (continue conducting).

Q-16 The signature here below,

whose signature is this?

A Mr. Vector I. Cruz, sir.

Why do you know that this is

Q - 17 his signature?

He signed it in front of me.

A
Priv. Pros. We pray, your honor, that the
signature of the accused
Vector I. Cruz be marked as
Exhibit "C-1".

COURT Mark it.

Priv. Pros. The third check, Banco Filipino

Check No. 0097710 dated July
10, 2000 in the amount of
P75.000.00 issued to the
complainant by the accused,
your honor, we respectfully
request that this check be
ordered marked as Exhibit "D".

COURT Mark it.

Priv. Pros. (continue conducting)

Q - 18 The signature here below of

this Exhibit "D", whose
signature is this?

A Mr. Vector I. Cruz. He signed it

in my presence, sir.
92
Priv. Pros. We request, your honor, that
the signature of accused
Vector I Cruz be marked as
Exhibit "D-1".

COURT Mark it.

Priv. Pros. Another Banco Filipino bearing

Check No. 0097711 dated July
6, 2000 in the amount of
P25.000.00. We respectfully
request, your Honor, that the
check be ordered mark as
Exhibit "E", and the signature of
the accused as Exhibit "E-1"

COURT Mark it.

Priv. Pros. (Continue conducting)

Q 19 The fifth check is Banco

Filipino bearing check No.
0097708 dated July 8, 2000 in
the amount of P 20,000.00
which the accused issued to
the complainant. We
respectfully request, your
honor, the same be marked as
Exhibit "F", and the accused'
signature be marked as Exhibit
"F-1".

COURT Mark it.

Priv. Pros. (Continue conducting his direct

examination)

Q-20 Is this among of the checks

issued by the accused to you
which bounced?

Yes, sir.

93
Q-21 There is a signature here,
whose signature is this, if you
know?

A of Accused Vector I. Cruz, sir.

Did the accused pay you any of

Q-22 these checks?

No sir, even a peso.

A
On the faces of these checks
Priv. Pros. are the words ACCOUNT
CLOSED. We respectfully pray
that these words be underlined
and respectively marked as "B-
2", "C-2", "D-2", "E-2", and "F-
2", your honor.

COURT Mark them accordingly.

Priv. Pros. (Continue conducting)

Q-23 In prosecuting these cases, as

stated in this affidavit, you have
engaged the services of Atty.
Armand T. Cuz, do you confirm
this?

A Yes, sir.

Q-24 Who is this lawyer?

A You, sir.

How much did you contract

Q-25
with his services?

At least 20% of the total

A
amount of the checks, plus P
1000.00 for his per
appearance.

94
 Q-26 In filing these cases, you
incurred expenses as stated in
your affidavit?
A Yes, sir.

Q-27 Do you confirm the truthfulness

of other statements in this
affidavit, Exhibit "A"?
A Yes, sir.

Priv. Pros. That will be all for this witness,

your honor. Pursuant to the
Rule on Summary Procedure,
this affidavit will be my witness'
direct testimony, your honor.

The above direct examination/ testimony may be limited only

to the identity of the parties, identity and authenticity of the Affidavit-
Complaint, Exhibit "A" [Ques. 1-10], and truthfulness of all other
facts stated therein [Ques. 27], as the identity and authenticity of all
annexes are presumably established by the sponsoring affidavit.
Sue direct examination may be taken on to cover also on the identity
and authenticity of said annexes [Ques. 12-22].

The annexes must be identified, authenticated, and duly

recorded in open court, not merely done before a notary public,
because the said checks/annexes are the subjects of the crimes.
Although, these B.P. 22 cases fall under the rule on summary
procedure, such practice is more advantageous to the proponent
because when said annexes are inadvertently misplaced, at least
the same are already recorded in the transcript of the stenographic
notes [Cf. Onate v. Court of Appeals, 320 Phil 344 (1995)].

For instance, a perjured affidavit of waiver which is the

subject matter of the crime of estafa through falsification of public
document must be identified and authenticated by the complaining
affiant-witness, not only through his/her judicial affidavit sworn to
before a notary public, but also through oral testimony given in court.

In a civil case, however, it is enough for the affiant-witness to

identify and authenticate his/her judicial affidavit alone, which states
annexes therein constituting as his/her direct testimony, like in a
case for recovery of possession illustrated on the next page.
95
Court Interpreter (Calling said civil case)

SPS. NOEL and NORMA G. GA, Plaintiff, -versus- SPS. MAR and
ROSITA S. TAN, Defendants, Civil Case No. 2074 for: RECOVERY
OF POSSESSION. This is for initial presentation of defendants'
evidence, your honor.

COURT Appearances?

Atty. Rey T. Zales Appearing for the plaintiff, your

honor. We are ready to receive
defendants' evidence.

Atty. Arci D. Solis We are ready to present our

first witness in the person of
Flor B. Moral, your honor.

Court Interpreter (Swearing in and qualifying the

witness) Witness is now ready
for direct examination, sir.

Atty. Arci D. Solis (Manifesting)

The testimony of this witness is
being offered to prove that she
knows both the complainants
and the defendants in this
case; that she executed her
judicial affidavit in connection
with this case; that all her
statements therein are true and
correct to the best of her own
knowledge and information;
and, to testify on all other
relevant matters, your honor.

COURT Proceed.

Atty. Arci D. Solis (Conducting the direct exam.)

Q-1 Madame witness, attached to
the records is a judicial affidavit
allegedly executed by a certain
Fe B. Moral, who is this affiant?
It's me, sir.
96
 Q-2 Above the printed name, Fe B.
Moral, there is a signature,
whose signature is this?
A That is my signature, sir.

Q-3 To whom did you subscribed

this judicial affidavit?
A Before you and at your law
office, sir.

Q-4 Whose signature above the

name, ATTY. ARCI D. SOLIS?
A It is your signature, sir.

Q-5 Are you sure?

A Yes, sir. You signed it in my
presence.

Q-6 Your statements in this affidavit

are all true and correct?
A Yes, sir.

Atty. Arci D. Solis (Manifesting) Your honor please,

pursuant to the previous agreement of the parties, may I request that
this judicial affidavit be considered as the direct testimony of my
witness and that this be marked as Exhibit " 1 " ; second page be
marked as Exh. "1-A"; the signature of Fe B. Moral be encircled and
marked as Exh. "1-A-1"; the signature of Notary Public, Atty. Arci D.
Solis, be encircled and marked as Exh. "1-A-2". We have done our
direct examination, and our witness is ready for cross, your honor.

CROSS-EXAMINATION

The cross-examination by the opponent is the second order

in the examination of an individual witness [Sec.4 (b), Rule 132, RRC].
Its primary purpose is to test the accuracy and truthfulness of the
witness free from interest or bias. All important facts are elicited
"with sufficient fullness and freedom" [Sec.6, Rule 132, RRC]. This is
the period of looking into the missing, or weakest connecting links or
parts of the visual structure of the adverse party's definite legal
theory. Sensing a particular missing link, as in the five criminal
cases, the defense counsel conducts his cross in this manner:

97
 "Defense Counsel With permission from this
Court, your honor.

Court Proceed

Defense Counsel (Conducting the cross)

Q-1 After you were informed by the
depositary bank of the fact that
the five (5) checks were
dishonored, as these bounced
for being drawn against the
insufficient funds, what did you
do, if any?
I made several verbal demands
for the accused to make good
of the checks.

Q-2 Did you notify him also in

writing of the fact that his
checks were dishonored by the
drawee bank?
No, sir. I made only a verbal
notice.

Defense Counsel (Being sure of the lack of

written notice, he said) this will
be all, your honor.

Court Any re-direct?"

RE-DIRECT EXAMINATION

The Re-direct examination is the third order in the

examination of an individual witness [Sec.4 (c), Rule 132, RRC]. It is
the stage when a witness "may be re-examined by the party calling
him to explain x x x his answers given during the cross-examination"
[Sec.7, Rule 132, RRC], thus:

Priv. Pros. (on re-direct examination)

Q Why did you not notify him in
writing?
It did not come to my mind, sir.

98
"or (to) supplement his answers given during the cross-examination"
[Sec.7, Rule 132, RRC], thus:

Priv. Pros. (on re-direct examination)

Q After verbally notifying the

accused of the fact that his five
(5) checks were dishonored by
the drawee bank, what did you
do?

A I asked him to redeem those

checks within five (5) days from
the day he received my verbal
notice, sir.

Or "on re-direct examination, questions on matters not dealt during

the cross-examination, may be allowed by the court in its discretion"
[Sec.7, Rule 132, RRC], thus:

Priv. Pros. (continued the re-direct)

Q Why did you not inquire from

the drawee bank's employees
whether they sent a written
notice of dishonor for each of
the five (5) checks which
bounced?

Def. Counsel Objection, your honor. That

was not asked during my
cross-examination.

Court (Ruling in its discretion) the

witness may answer.

A I did not know what to do, sir.

Priv. Pros. That will be all for this witness,

your honor.

Court Re-cross-examination?

99
 RE-CROSS-EXAMINATION

The re-cross-examination is the fourth order in the

examination of an individual witness [Sec.4 (d), Rule 132, RRC].
This is the period when the witness may be re-cross-examined by
the adverse party on matters stated in his re-direct examination, and
on such other matters maybe allowed by the court in its discretion
[Sec.8, Rule 132, RRC], thus:

Def. Counsel (Conducting the re-cross-

examination)

Q But are you sure that no written

notice of dishonor was sent to
the accused by the drawee
bank?
Yes, sir.

Def. Counsel That will be all, your honor.

Court Next witness for the

prosecution?

Priv. Pros. The private complainant is my

only witness, your honor.

[NOTE: In one of the recent lectures of Ret. Justice Ricardo P.

Galvez, citing the case of Recuerdo vs. People, G. R. No. 133036,
January 22, 2003, "It is not required much less indispensable, for
the prosecution to present the drawee bank's representative as a
witness to testify on the dishonor of the checks because of
insufficiency of funds. The prosecution may present only the
complainant as a witness to prove all the elements of the offense'].

Relying on the afore-cited ruling, and believing that the

ultimate fact in issue- that the drawer had knowledge of the
insufficiency of funds - h a s been duly established by its written
testimonial and documentary evidence, the prosecution opted to
terminate the presentation of its evidence and manifested to file, ten
days after, its formal offer of exhibits.

100
 CHAPTER 3
OFFER OF EXHIBITS

The Oral or Written Offer of Exhibits or evidence shall be

done after the presentation of a party's testimonial evidence [Sec. 35,
Rule 132, RRC]. If not formally offered, the evidence shall not be
considered by the court [Sec. 34, Rule 132, RRC; Far East Bank & Trust
Co. vs. Commissioner of Internal Revenue, G.R. No. 149589, 9/15/06].
But, even if the evidence has not been formally offered, the same
shall be considered on condition that: (1) the evidence must have
been identified by testimony duly recorded; and, (2) it must have
been incorporated in the records of the case [Onate v. CA, 320 Phil.
344 (1995V. P v. Napat-a, 179 SCRA 403 (1989V. P v. Mate, 103 SCRA 484
(1981): But read Parel v. Prudencio, G.R. No. 146556, 4/19/06, CDSCD, p.
78, including Bravo, Jr. v. Borja cited therein; N.B., 2002 Bar Exams.].

th
This offer is the Sixth (6 ) Instance of introducing a party's
definite legal theory. It presupposes that all three (3) elements of the
party's cause of accusation in each of the five (5) criminal cases,
including the causes of action in civil cases impliedly instituted are
sufficiently supported by the plaintiff / prosecution's evidence.

(Caption omitted)
PROSECUTION'S FORMAL
OFFER OF EXHIBITS/EVIDENCE

The Prosecution, unto this Honorable Court most respectfully

submits this Formal Offer of Exhibits and states that:

Exh. "A" - The Affidavit-Complaint of the

complainant, Vector I. Cruz consisting of one
page, dated 28 November 2000, subscribed
before Asst. City Prosecutor Helen B. Sale.

Purpose This is formally offered to prove and

show that indeed the accused issued the five
checks mentioned therein in favor of
complainant and when presented for
encashment, the same were dishonored by

101
 the drawee bank on the ground "ACCOUNT
CLOSED", and despite several demands
made, the accused failed and refused to make
good the checks to the damage and prejudice
of herein private complainant. This is offered
to prove that the said five (5) checks were
issued in payment of loan. This is also offered
to prove the due execution of the complaint-
affidavit and to the veracity of all the
allegations therein contained.

Exhs. "B", "C","D", "E", "F" - The five (5) checks, BF

Bank Butuan Branch Check Nos: 0097712 W/
face value of P 9,000.00; 0097709 W/ fv of P
19„050.00; 0097710 W/ face value of P
75,000.00; 00977011 W/ face value of P
25,000.00; and 0097708 WFC of P 20,000.00,
dated June 22, 2000, June 28, 2000, July
6,2000, July 10, 2000, and July 8, 2000,
2005, respectively.

Exhs. "B-1", "C-1", "D-1", "E-1", "F-1" - The signatures of

accused Vector I. Cuz, respectively.

Exhs. "B-2", "C-2, "D-2", "E-2", and "F-2" - The words

"ACCOUNT CLOSED" on the respective faces
of the checks.
Purposes These exhibits are formally offered to
prove and show that the accused did issue
said checks and when presented for
encashment, the drawee bank dishonored the
same for reason "ACCOUNT CLOSED" and
the same were returned to private
complainant. To prove further that the
accused is indebted to private complainant,
Mr. Lucio L. Talo, for the total sum of
P250.000.00, exclusive of interest, cost of
litigations, damages and attorney's fees.
The above exhibits are also formally offered as part of the
testimony of witness Lucio L.Talo.

102
 Respectfully submitted, Cabadbaran, Agusan del Norte for
Butuan City, Philippines, March 6, 2005.

(SGD) Armand T. Cruz

Private Prosecutor
(Office Address; Roll, IBP, PTR &
MCLE Compliance Nos. omitted)

"An offer of evidence in writing shall be objected to within

three (3) days after notice of such offer unless a different period is
allowed by the court" [Sec.36, Rule 132, RRC].

Thereafter, the court may rule on those objections and admit

or deny said exhibits in evidence.

"If documents or things offered in evidence are excluded by

the court, the offeror may have the same attached to or made part of
the record. If the evidence offered is oral, the offeror may state for
the record the name and other personal circumstances of the
witness and the substance of the proposed testimony." [Sec. 40, Rule
132, RRC]. The tender of excluded evidence is also known as proffer
of evidence. The purpose of such offer is to inform the court what is
expected to be proved and to procure exceptions to the excluding of
the offered evidence so that the higher Court may determine from
the record whether the proposed evidence is competent.

After the admission of its exhibits in evidence by the court,

the prosecution may rest its case. Within a non-extendible period of
five (5) days thereafter, the defense may file a motion for leave of
court to file a demurrer to evidence. The prosecution may oppose
the motion within a non-extendible period of five (5) days from its
receipt [Sec.23, Rule 119, RRC].

DEMURRER TO EVIDENCE

If leave of court is granted, the accused shall file the

demurrer to evidence within a non-extendible period often (10) days
from notice. The prosecution may oppose the demurrer to evidence
within a similar period from its receipt [Sec.23, Rule 119, RRC].

After filing the demurrer and opposition thereto, then the

court may set the hearing of both pleadings for oral argument, or

103
 may direct both parties to submit first their position papers
(memoranda in cases falling under the rule on regular procedure)
citing the applicable laws, rules or jurisprudence which may aid the
court in ruling whether the defense' demurrer to evidence be granted
based on the absence of a written notice of dishonor.

In Domasang vs. CA, G.R.No.139292, December 5, 2000,

cited by Hon. Justice Ricardo P. Galvez in his lecture given at
Legend Hotel, Puerto Princesa City, Palawan on November 9, 2006,
the Honorable Supreme Court ruled:

"While, indeed, Section 2 of B.P. Big.22 does not

state that the notice of dishonor be in writing, taken in
conjunction, however, with Section 3 of the law, i.e.,
'that where there are no sufficient funds in or credit
with such drawee bank, such fact shall always be
explicitly stated in the notice of dishonor or refusal, A
MERE ORAL NOTICE OF DEMAND OR TO PAY
WOULD APPEAR TO BE INSUFFICIENT FOR
CONVICTION UNDER THE LAW. The Court is
convinced that both the spirit and letter of the
Bouncing Checks Law would require for the act to be
punished there under not only that the accused
issued a check that is dishonored, but that likewise
the accused has actually been notified in writing of
the act of dishonor."

Assuming that a written notice of dishonor, per affidavit-

complaint Exhibit "A", was sent to the accused by the bank's
representative, as shown by a registry receipt and a return card,
identified, marked as Exhibits "G", "H" and " I " , respectively, offered
as among of the prosecution's exhibits, and duly admitted in
evidence by the court, then the defense's demurrer to evidence filed
in court may be ordered denied.

The order denying the motion for leave of court to file

demurrer to evidence or the demurrer itself shall not be reviewable
by appeal or by certiorari before judgment [Last par., Sec.23, Rule 119,
RRC].

104
DEFENSE' EVIDENCE

The defense having the duty or burden of evidence (not the

burden of proof) may present evidence to disprove/controvert the
prosecution's proving facts - that the accused did sign any return
card and he did receive the written notice of dishonor from the
drawee bank's representative.

Such facts are the defense' disproving or controverting

evidentiary facts against the prosecution's proving evidentiary facts
of a written notice of dishonor and of the receipt of said notice by the
accused.

The defense's presentation of controverting evidentiary facts

is its fifth instance of introducing the structure of accused or
defendant's definite legal theory of defense. Thus:

Court Interpreter (Calling the case) This is the

initial presentation of evidence
for the defense, your honor.

Court Appearances?

Pub. Pros. Respectfully appearing for the

prosecution, we are ready to
receive the defense' evidence,
your honor.

Priv. Pros. For the prosecution, your

honor, we are ready to receive
the defense' evidence, your
honor.

Def. Counsel Respectfully appearing for the

accused in these five (5) cases,
your honor.

Court Call your witness

Def. Counsel We are calling to the witness

stand our witness, the accused
himself, Mr. Vector I. Cruz.,
your honor.
105
 Pub. Pros. May we know, your honor,
whether the defense has other
witnesses in court?

Def. Counsel For the moment, we have one

witness in court to be
presented, your honor.

Court All right, swear in the witness.

Court Interpreter Do you swear to tell the truth

and nothing but the whole truth
in these proceedings?

Witness (Raising his right hand) Yes, I

do.

Court. Inter. Please state your name, age,

civil status, occupation and
other personal circumstances.

Witness I am Vector I. Cruz, 30 years

old, married, a businessman
and a resident of 55 St., Aquino
Subdivision, Butuan City, sir.

Court Your witness.

May it please the Honorable

Def. Counsel
court.

With pleasure, proceed

Court
counsel.

The testimony of this witness is

Def. Counsel
offered to prove: That he
executed his counter-affidavit
previously marked during the
pre-trial conference as Exhibit
" 1 " , his signature marked as
Exh."1-A"; That he did not sign
any return card, neither he
receive any written notice of
106
 dishonor of his five checks
allegedly sent by the bank's
representative; and that all the
statements of fact contained in
said counter-affidavit are true
and correct to the best of his
own personal knowledge and
belief. With permission of this
honorable court, may I
proceed, your honor?

Court Proceed.

Def. Counsel (Having the burden of

evidence, he presents his
evidence, conducts the direct
examination of his witness, and
elicits his controverting
evidentiary facts to disprove
the prosecution's proving
evidentiary facts) Thus:

Q Mr. Witness, are you the same

Vector I. Cruz, the accused in
these five (5) Informations for
violation of Batas Pambansa
Big. 22?

A Yes, sir.

Q When for the first time that you

learned these five (5) criminal
cases have been filed against
you?

A That was in December 2000,

sir, when I received the
summons from the City
Prosecution's Office requiring
me to submit my counter-
affidavit, sir.

107
 Priv.Pros. To abbreviate the
proceedings, your honor, we
do admit the existence of the
defense' Exhibit " 1 " , also its
due execution and
authenticity, but we don't admit
the truth of all the facts stated
in his affidavit, your honor.

Def. Counsel Any way, your honor, these

cases fall under the rule on
summary procedure, which
considers the affidavits of
witnesses as their direct
testimonies in court. So, in this
instance, our witness is ready
for cross-examination, your
honor.

Court Any cross-examination from

the prosecution?

Priv. Pros. A very brief cross, your honor.

Court Proceed.

Priv. Pros. (Conducting the cross-

examination)

Q Mr. witness, even if I will

present in the next hearing the
postman who delivered to you
the written notice of dishonor of
your five checks, would you still
insist and deny that you did not
receive the same?

Yes, sir. I did not really receive

said notice.

Q You also insist that you did not

sign any return card sometime
108
 in November 2000 at your
residence, 55 St., Aquino
Avenue, Butuan City?

A Yes, sir.

Priv. Pros. That will be all, your honor.

Court Re-direct examination?

I have one question for

Def. Counsel redirect, your honor.

Proceed.
Court
(Conducting the re-direct)
Def. Counsel
Why do you insist that you did
Q not receive any written notice
of dishonor of your checks?

A Because I really did not see

any postman at my residence
sometime in November 2000.

Def. Counsel That will be all, your honor.

Court Re-cross-examination?

Priv. Pros. (Conducting the re-cross-

exam.) With the permission of
this honorable court, your
honor.

Q Mr. Witness, do you know a

certain person by the name -
Jose de la Cruz?

Def. Counsel Objection, your honor. That

was not mentioned in our re-
direct examination, your honor.

109
 Court Objection sustained. Just
present that person as your
rebuttal witness.

Priv. Pros. We submit, your honor. We

respectfully request one (1)
setting for the presentation of
our rebuttal evidence on June
10, 2001, your honor.

Court Any offer of defense' exhibits?

The Defendant/Defense' Formal Offer of exhibits is its sixth

instance of introducing the accused' definite legal theory of defense.
Thus:

Defense. Counsel We have only one (1) exhibit to

offer, your honor. This is the
counter-affidavit of accused
Vector I. Cruz, dated
December 10, 2000, previously
marked as Exhibit " 1 " and the
signature of the accused as
Exh. "1-A', your honor. The
purposes of this oral offer are
the same as those of our oral
offer of Mr. Vector I. Cruz'
testimony, your honor.

NOTES: 1) If the defense' exhibits are not admitted in evidence by

the court, then the defense may tender its excluded evidence [Sec.40,
Rule 132, RRC] for the appellate court to consider and, hence, its
evidence will be limited only to testimonial evidence; 2) Then, the
prosecution may move to submit its cases for decision; or it may opt
to present its rebuttal evidence].

REBUTTAL EVIDENCE

The facts that may be elicited during the reception of

prosecution rebuttal evidence are the prosecution's rehabilitating
evidentiary facts, which may be established by way of a

110
supplemental affidavit-complaint [Sec.15, RRSP], with supporting
documents, to be presented, identified, and authenticated by the
witness-affiant during the direct examination subject to cross,
redirect and re-cross-examination by counsels.

In these five typical criminal cases for violation of B.P. 22,

where the accused vehemently denied the receipt of a written notice
of dishonor of five checks, the prosecution resolved to present a
postman in order to rebut the defense's controverting evidentiary
facts, and to rehabilitate its proving facts which would ultimately
establish its ultimate fact—that the accused herein had actual
knowledge of the insufficiency of the funds.

To elaborate:
s
1 ' - the ultimate fact of the prosecution is the
knowledge of the accused on the insufficiency of
funds;

nd
2 - the proving fact of the prosecution is its service
of a written notice of dishonor to the accused;
rd
3 - the controverting fact of the accused is the
his/her denial of receipt of a written notice of
dishonor;
th
4 - the rehabilitating fact of the prosecution is the
accused' actual receipt of a written notice of dishonor
as shown by the authenticity of the registry and
return receipts.

Receipts for registered letters and return receipts do not

prove themselves; they must be properly authenticated in order to
serve as proof of receipt of the letters. [Ting vs. CA, 344 SCRA 551
(2000); cited by Hon. Justice R. P. Galvez, supra].

When these five (5) cases were called for the presentation of
prosecution's rebuttal evidence, the proceedings ensued, thus:

Court Appearances?

Def. Counsel Respectfully appearing for the

accused, your honor.
111
Pub. Pros. The same appearance, your
honor. We are ready to present
our rebuttal evidence.

Priv. Pros. The same appearance, your

honor. We are ready to present
one rebuttal witness, in the
person of Mr. Jose de la Cruz.

Court Swear in the rebuttal witness.

Court Inter. Do you swear to tell the truth

and nothing but the whole truth
in these proceedings and
before God?

Witness (Raising his right hand) Yes, I

do.

Court Inter. Please state your name, age,

civil status, occupation and
other personal circumstance.

Witness I am Jose de la Cruz, 28 years

old, single, a postman assigned
to deliver letters or packages
within the territorial jurisdiction
of Butuan City, and I am
residing at Brgy. Basag,
Butuan City, sir.

Court Inter. Witness is ready, your honor.

Priv. Pros. Before I proceed my direct

examination, your honor, may I
ask from the defense' counsel
whether he will allow us to
present our rebuttal witness
even without his affidavit?

Def. Counsel It's all right for us, your honor,

just to speed up the
112
 proceedings. Anyway, it is
allowed under Section 15 of the
Rule on Summary procedure.

Court What is your offer?

Priv. Pros. This witness is presented just

to authenticate the return card,
your honor, and in order to
rebut the testimony of the
accused - that he did not
actually receive a written notice
of dishonor, and did not sign
any the return card.

Court Proceed.

Priv. Pros. (Having the burden of

evidence, he is presenting his
rebuttal evidence; conducting
the direct examination of his
rebuttal witness, the Postman
Jose de la Cruz; and eliciting
his rehabilitating evidentiary
facts from said witness to rebut
the defense' controverting
evidentiary facts), thus:

Q-1 Mr. Witness, since when you

have been a Postman?

A Since 1998 up to the present,

sir.

On December 10, 2000 at

Q-2 10:00 o'clock in the morning,
where were you?

I was at 55 St., Aquino Subd,

A Butuan City, sir.

11
Q-3 What were you doing there, if
any?

A I delivered a letter to Mr. Vector

I. Cruz, sir.

Q-4 What did you do when you

delivered a letter to said Vector
I. Cruz?

A I requested Mr. Cruz to sign the

return card.

Q-5 When you requested him to

sign the return card, what did
Mr. Cruz do, if any?

A He affixed his initial in this

return card, sir.

Q- 6 Where is that initial in this

card?

A Above the printed name Vector

I. Cruz, sir.

Priv. Pros. We respectfully pray, your

honor, to mark this return card
as our Exhibit " I " , and the
signature above the printed
name Vector Cruz be marked
as Exh. "1-1".

Court Mark them accordingly.

Priv. Pros. Mr. Witness, if that person

Vector Cruz is in court, can you
recognize him.

A Yes, sir.

Q-7 Look around and identify

Vector Cruz.
114
Witness (Looking around)

Q-8 Can you now identify Vector

Cruz?

A He is not present in court, sir.

(Stunt with his witness' answer,

he manifested) Can I ask for a
Priv. Pros. recess, your honor?

But before we have a recess, I

respectfully pray, your honor, to
Def. Counsel put on record that accused
Vector I. Cruz is in court, and
he was around when the
Rebuttal witness was asked
during the direct examination to
identify the accused.

Court Put on the record the counsel's

manifestation. Any cross-
examination?

Def. Counsel No cross, your honor.

Priv. Pros. Your honor, our next rebuttal

witness is the drawee bank's
employee, Ms. Kim
Constantino. We are calling
her to the witness stand, your
honor.

Court Swear in the witness

Court Inter Please raise your right hand.

Do you swear to tell the truth
and nothing but the whole truth
in these proceedings?

Witness (Raising her right hand) Yes, I

do.
115
Court Inter. Please state your name, age,
civil status, educational
attainment, occupation and
other personal circumstances.

Witness I am Ms. Kim Milby

Constantino, 25 years old,
single, presently a bank
employee of BF Bank Butuan
Branch, Butuan City and a
resident of DAR Subdivision,
Butuan City, sir.

Court Inter. The witness is ready, your

honor.

Priv. Pros. With the permission of this

honorable, may I proceed, your
honor?

Court Proceed.

Priv. Pros. (Conducting the direct

examination)

Q Ms. Witness, as employee of

BF Bank, what is your
particular duty or task?

A I am the bank's teller and

document analyst.

Q Since when you have been an

employee of BF Bank, Butuan
Branch, Ms. Witness?

A Since June 16, 2004, sir.

Def. Counsel May I interrupt your honor. We

may know, your honor, what is
the purpose of the testimony of
this witness?

116
Priv. Pros. I'm sorry, your honor. The
testimony of this witness, your
honor, is offered to prove the
existence of our Exhibit "H",
the registry receipt of a notice
of dishonor of Vector Cruz'
checks, including its due
execution and authenticity,
your honor. Any way, B.P. Big.
22 does not specifically require
that the holder alone of the
bounced check(s) shall notify
the drawer in writing, your
honor

Def. Counsel We will admit the existence,

due execution and authenticity
of the prosecution's Exhibit "H",
your honor.

Priv. Pros. With those admissions, we

have no further questions, your
honor.

Court Any cross-examination?

Def. Counsel No cross. Your honor.

Priv. Pros. There being no cross, we are

now ready to offer our
additional exhibits orally, your
honor.

Court Proceed.

Priv. Pros. Exhibit "H" - The Registry

Receipt - is offered to
prove that a notice of dishonor
of five (5) checks were sent by
registered mail to accused
Vector I. Cruz; Exh. "H-1" -
The Date, December 10, 2000,
is offered to prove the actual
117
 date of mailing; Exhibit " I " -
The Registry Return
Card/Receipt- and Exhibit "H-
1" are offered to prove that our
Exhibit "G" - The Notice of
Dishonor - was indeed
received by accused Vector I.
Cruz at his residence located at
55 St., Aquino, Subdivision
Butuan City; these exhibits are
also offered as part of the
rebuttal witnesses' testimonies.
Respectfully submitted, your
honor.

Court Comment or objection?

Def. Counsel: Exhibit "H" and its sub-

markings, as well as, the
purposes of its offer are
admitted, your honor. Exhibit " I "
and its sub-markings, including
its purposes are not admitted
your honor. This Exhibit " I " was
not duly authenticated by
rebuttal witness Jose de la
Cruz, because this witness
failed to identify in court
accused Vector I. Cruz.
Respectfully submitted, your
honor.

Court Ruling: The defense' objection

on the authenticity of
Exhibit " I " is actually a matter of
weight and sufficiency of
evidence. Wherefore, the
prosecution's Exhibits "H" and
" I " , including the sub-markings,
and the respective purposes of
the offer thereof are hereby
admitted in evidence, and as
part of the witnesses'
118
 testimonies. Any presentation
of sur-rebuttal evidence?

SUR-REBUTTAL EVIDENCE

Def. Counsel We can present now, your

honor. Our sur-rebuttal witness
is the accused himself, your
honor.

Court Call the witness.

We are calling to the witness

stand Mr. Vector I. Cruz with
the same personal
circumstances which were
given before, and he is
Def. Counsel
testifying under the same oath,
your honor.

What is the purpose of your

witness' testimony?

The testimony of my witness is

offered to prove that he did not
Court
sign the prosecution's Exh. " I " -
the return card - your honor.

Proceed.

Def. Counsel (Having the burden of

evidence, is presenting his sur-
rebuttal evidence; conducting
the direct examination of his
sur-rebuttal witness; and
eliciting his rehabilitating
Court evidentiary facts to disprove
the prosecution's rehabilitating
Def. Counsel evidentiary facts), thus:

119
 In this Exhibit " I " - the return
card - there is a signature
above the printed name Vector
Cruz, what can you say this?

A That is not my signature, sir.

Q Why do you say that?

A That is just an initial. Usually, I

have to affix my signature in full
name, sir, Vector I. Cruz.

Def. Counsel That will be all, your honor.

Court Cross-examination?

Priv. Pros. Few questions, your honor.

Court Proceed.

Q-1 I heard from you during the

direct examination, the word
USUALLY, my question is: has
there been an instance that you
affixed your initial only, not your
full name?

A Yes, sir.

Q-2 And one of these instances

was: when you signed or
affixed your initial over the
printed name Vector Cruz as in
this return card?

Not in this return card, sir, but

only in other papers not so
important, sir.

Q-3 Do you have with you now any

specimen of your initial affixed
above your printed name in not
120
 so important paper, Mr.
Witness?

A I don't have, sir?

But you have it in your house,

Q-4
or personal files?

I don't know whether I have it in

A
my files, sir?

Did someone sign the return

Q-5
card for you and you receive
the notice of dishonor from him,
and not from the postman, is it
not the fact?

Def. Counsel Objection, your honor, the

question is compound, and it
assumes the facts not in
evidence.

Court Ruling: Objection sustained.

Another question?

Priv. Pros. That will be all, your honor.

Def. Counsel We have no exhibit to offer,

your honor.

Court What about the disputed initial

in that Exh. " I " , marked as Exh.
"I - 1 " for the prosecution?

Def. Counsel We have already denied it,

your honor.

Court No more sur-rebuttal witness to

be presented?

Def. Counsel We have no further evidence,

your honor.

121
 Court No witnesses to be recalled by
the prosecution or by the
defense?

Def. Counsel On our part, we don't have,

your honor.

Court What about the presentation of

affidavits or depositions of the
parties or witnesses, known as
Evidence on Motion under
Section 7, Rule 133 of the
Revised Rules of Court?

Priv. Pros. On that matter, your honor, we

would like to ask from the
honorable court to give us five
(5) days from today within
which to decide, your honor?

Court Manifestation is granted. Both

counsels may file appropriate
pleadings after five (5) days.

Within the 5-day period for evaluation of its evidences, the

prosecution in said cases opined: First, that all of its ultimate facts,
including the disputed ultimate fact-that herein accused had
knowledge of the insufficiency of the funds-are duly supported by
evidentiary facts; Second, that its evidentiary facts are duly proved
by its testimonial evidence, (oral / written) and documentary exhibits;
Third, the offered testimonies of its witnesses and exhibits are all
admitted in evidence; Fourth, all of its witnesses were not
disqualified to testify; Fifth, the weight and sufficiency of all its
evidences have absolutely proved the guilt of the accused beyond
reasonable doubt.

On the contrary, the defense in said cases opined: that the

opportunity of prosecution's witness Jose de la Cruz of knowing the
facts to which he is testifying [Sec.1, Rule 133, RRC]—that he saw
accused Vector I. Cruz signing in the return card was in fact
affected by the witness' sensual circumstance of sight. The said
witness failed to convey in open court of what he perceived, saw or

122
knew of the fact - that a person had signed in the return card on
Dec. 10, 2000 at 55 St., Aquino Subdivision, Butuan City.

Five days later, both counsels jointly manifested in writing

and prayed to the court that their cases be deemed submitted for
decision after the submission of position papers - maybe allowed by
the court in its discretion at the instance of the parties, especially,
when legal issues and/ or "indeterminacy of law thesis' arises [p.56].

THE SUBMISION OF POSITION PAPERS

The position papers or memoranda for cases falling under

the Rules on Regular Procedure are the parties' written
arguments, setting forth the law and the facts relied upon by them.

The submission thereof is the last in the order of trial

[Sec.11(d), Rule 119, RRC; Sec. 5(g), Rule 30, RRC; Framers Construction
& Development Corporation vs. Lugar, G.R. No. 03873, September 30,
1985]. But it is not essential to due process, neither necessary in
deciding a case (civil/criminal) [Read P v. Terrobias, 103 SCRA 323
th
(1981)]. It is the seventh (7 ) instance of introducing the structure of
a party's definite legal theory of the case or defense.

QUERIES: Supposed the accused in any criminal case has not

yet been arraigned until the trial terminates, could the lack of
arraignment be cured? How to cure it? Is there a need to cure
it? Why?

Yes, by holding the arraignment before said criminal cases

are submitted for decision, and by merely adopting the previous
proceedings [See P v. Cabale, 185 SCRA 140 (1990)]. Otherwise, such
proceedings are null and void because the right of the accused to be
informed of the nature and cause of the accusation mav not be
waived. However, it is altogether a different matter if the accused
had refused to be arraigned, and cannot complain later of the lack of
arraignment [P v. Dy, G.R.Nos.115236-37, 1/16/02; CDSCD, P.52].

After considering both parties' position papers in the five

typical criminal cases, the court opined that: the prosecution's
Exhibit " I " (the return card) was not properly authenticated; or the
prosecution's proving evidentiary fact - the actual receipt of the
notice of dishonor by the accused - was not sufficiently rehabilitated;

123
 or the rehabilitating evidentiary fact of the prosecution was missing
in the visual structure of a party's definite legal theory of the case.

Citing the recent rulings of the Hon. Supreme Court, the

court further opined: that "It is necessary in violations of B.P. Big. 22,
that the prosecution must prove that the issuer had received the
notice of dishonor. The burden of proving such notice rests upon
the party asserting its existence. In civil cases, preponderance of
evidence is sufficient to prove notice. In criminal cases, however,
the quantum of proof required is proof beyond reasonable doubt.
Hence, for B.P. Big.22 cases, there should be clear proof of notice.
Receipts for registered letters and return receipts do not prove
themselves; these must be properly authenticated in order to serve
as proof of receipt of the letters" [Ting vs. CA, 344 SCRA 551]. Thus,

THE COURT'S RULING:

WHEREFORE, for failure of the prosecution to

prove the guilt of the accused beyond reasonable
doubt, the above entitled criminal cases are hereby
DISMISSED, and accused Vector I. Cruz is hereby
ACQUITTED.

However, by preponderance of evidence in

favor of private complainant Lucio L.Talo, judgment is
rendered ordering accused / defendant Mr. Vector I.
Cruz to pay said complainant the face value of the
five (5) checks in the total sum of Php A48,050.00,
plus twelve percent (12%) legal interest per annum
from the date of filing of five informations until the due
amount is paid; another (10%) of such sum as
attorney's fees; and the costs of these suits.

WRITER'S INSIGHTS AND RECOMMENDATIONS

As above-illustrated, while the prosecution's definite legal

theory was complete in its structural form, or all of its parts were
correspondingly supported by admissible evidence, but its
rehabilitating evidentiary fact was insufficient, or that the degree of
proof of authenticity of return card was insufficient to produce
conviction in an unprejudiced mind [Sec.2, Rule 133, RRC].

124
 As a rule of practice, despite of the admissibility of all of the
prosecution / plaintiff's evidences, after it rests its case, the court
may dismiss the action on the ground of insufficiency of evidence
[Sec.23, Rule 119, RRC], or that upon the facts and the law the plaintiff
has shown no right of relief [Sec.1, Rule 33, RRC].

Even after a full blown trial, notwithstanding of the

admissibility of all the prosecution's evidences, the action may be
dismissed on the ground of insufficiency of evidence. And, the
accused may be acquitted, either because the prosecution
absolutely failed to prove the guilt of the accused or merely failed to
prove his guilt beyond reasonable doubt [Sec.2, par.2, Rule 120, RRC].

So, as long as the right of action or legal remedy is still

available, or otherwise not barred by the existing statutes or rules,
both the admissibility and credibility or weight and sufficiency of
evidence must concur.

Moreover, in introducing the party's adopted definite legal

theory, the lawyer must also consider his/her other cerebral skills:
st
1 ) His/her ability of employing a party's written or visual trial guide
in detecting or supplying the missing or weak connecting link (s) of
nd
the structure of a party's definite legal theory; 2 ) His/her
beneficence of exploiting the witnesses' personal circumstances as
rd
entry points in eliciting evidentiary facts; 3 ) His/her capacity of
using guide questions: What, Where, When, Why, Who, Whom,
Who's, Which, or How in conducting the direct examination; and,
th
4 ) His/her dexterity of propounding leading guestions to adverse
party's witness concerning other circumstances surrounding the
case. (i.e. You were at the store of Mr. Jose Cruz? You were
conversing with said Mr. Cruz at that time? Said store is 50 meters
away from the crime scene? You heard the commotion behind your
back? You did not see the accused stubbed the victim? etc.).

Law students may gain more legal insights and the art of
introducing a party's definite legal theory by actively participating in -

THE MOCK PRE-TRIALS AND TRIALS

They may start with simple summary cases, such as: the
special civil action for unlawful detainer [Sec. 1 Rule 70, RRC]; and a
complaint/ information for Violation of B.P. Big. 22, and continue with

125
 PART
THE LAWYER'S
OUT OF COURT
ACTIVITIES

"Justice, Peace, and Development:

The role and responsibility of lawyers."

--Hon. Reynato S. Puno

Chief Justice, Supreme Court
Philippines

127
Law Practice Defined
In the enshrined case of Cayetano v. Monsod [G.R.No.10011
3, September 3, 1991, 201 SCRA 212], the Supreme Court defined the
practice of law as any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and
experience [Compare P v. Villanueva, 14 SCRA 109 (1965)].

[A]person is considered to be in the practice of law when he,

for valuable consideration, engages in the business of advising
persons, firms, association or corporation as to their rights under the
law, or appears in a representative capacity before any court,
commissioner, referee x x performs any act for the purpose of
obtaining the rights of his clients under the law [supra].

Generally, a practicing lawyer is one who engages in the

practice of law, both in or out of court activities [Monsod case]; In a
limited sense, a practicing lawyer is a trial lawyer, who is in the
active, actual and habitual exercise of a lawyer's legal knowledge
and skill especially in court appearances and pleadings, generally
done for compensation [P v. Villanueva, supra]. In other words, one
may be a practicing lawyer without necessarily being a trial lawyer.
But, being a trial lawyer one is necessarily a practicing lawyer, doing
in-court activities.

A lawyer shall keep abreast of legal developments;

participate in continuing legal education programs, support efforts to
achieve high standards in law school as well as in the practical
training of law students and assist in disseminating information
regarding the law and jurisprudence [Canon 5, Code of Professional
Responsibility].

A lawyer shall participate in the development of the legal

system by initiating, or supporting efforts in law reform and in the
improvement of the administration of justice [Canon 4, CPR].

The administration of justice may also be improved by a

lawyer conscientiously sponsoring in any forum outside the court a
policy or proposition with social, cultural, economic and political
relevance through a position paper or memorandum.

129
A CONSCIENTIOUS, DEVELOPMENTAL, RELEVANT AND
RESPONSIVE POSITION PAPER OR MEMORANDUM

In preparing a Position Paper or Memorandum, on a definite

proposition (factual or legal), the conscientious proponent/sponsor
must have a basic knowledge of the facts of life acquired through
his/her personal experience, schooling, special training, or
continuous learning. Such knowledge must have an impact on
his/her total person, forming part of his/her matured conscience in
deciding: whether the affirmative or negative side of a proposition is
good or evil in the name of humanity and/or civil liberty; whether it is
necessary for the survival, development and attainment of a just and
humane society; and whether it is in accord with the well settled truth
(in the contexts of human experience, fact, science, mathematics,
philosophy, theology, law and etc.) and feasible within the
established territorial and jurisdictional authority.

In his/her memorandum, the proponent/author is practically

introducing the pros and cons of a proposition and discussing the
merits on three (3) general issues: 1) The beneficiality - whether a
proposition is good or bad to any individual person, to a family, to a
community (local, national or international), or to the environment; 2)
The necessity - whether a proposition is necessary to change the
prevailing policy, or status quo; or whether there is no other and
better alternative proposition; 3) The workability - whether a
proposition is not contrary to the well established truth which one
has recently discovered, and not against the existing authority.

Finally, the proponent / opponent is proposing or urging the

entity, committee or community for a definite disposition or a course
of action to be observed.

A conscientious objector, for example, may refuse to

participate in military service on the basis of his/her religious belief
[The Grolier International Dictionary]. He/she may introduce his/her
proposition by way of a memorandum/position paper and may
deliver the same at any convenient forum, in a commonly known or
understandable language, and in a most persuasive style. But, may
this proposition be consistent with the common good? [Cf. Victoriano
v. Elizalde Rope Workers Union, 59 SCRA 54 (1974)].

The Free Legal Assistance Group (FLAG), one of the

conscientious oppositors to capital punishment, issued a
130
position paper on December 18, 2000 urging the immediate
enactment of Senate Bill 2224 - An Act Abolishing the Death
Penalty - into law [FLAG, Not in Our Name, p. 81]. The Philippines
being a party to the International Covenant on Civil and Political
Rights (January 23, 1987), and there being no compelling reasons
for the re-imposition of death penalty involving heinous crimes,
Congress enacted R.A. No. 9346 repealing the Death Penalty Law
(R.A. No. 7659), as well as related laws, decrees and orders.
In the name of civil liberty, the Karapatan and other human
rights groups are clamoring for more effective judicial protections.
in addition to the traditional Writ of Habeas Corpus [Rule 102, RRC].

Thus, pursuant to Article VIII, Sec. 5 (5) of the 1987 Phil.

Const., the Hon. Supreme Court promulgated the "Rule on Writ of
Amparo" on Sept. 25, 2007, effective Oct. 24, 2007 [A.M. No. 07-9-
12-SC], and applied it first in the case of Secretary of DND and Chief
of Staff of AFP vs. Raymond and Reynaldo Manalo [G.R. No. 180906,
10/7/08, Law Phil. Net].

Hon. Chief Justice R. S. Puno said, "This rule will provide

the victims of extralegal killings and enforced disappearances the
protection they need and the promise of vindication of their rights"
[FHR, July-Sept. 2007 Issue, cover page].

Then, on Jan. 22, 2008, the Hon. Supreme Court issued an

allied remedy - the Rule on Writ of Habeas Data, which is available
to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of any person
or entity engaged in the gathering or storing of data or information
regarding the person, family, home and correspondence of the
aggrieved party [A.M. No. 08-1-16-SC, 1/22/08].

In general, a more conscientious, developmental, relevant,

and responsive lawyers may issue their position papers affecting the
present state of our socio-economic and political independence.
They may take the key from the article of Hon. Chief Justice
Reynato S. Puno - "Justice, Peace and Development: The role
and responsibility of lawyers." [The Court Systems Journal, Vol. II,
No.1, March 26, 2006, pp. 26-32].

131
A TRIAL LAWYER'S POSITION PAPER OR MEMORANDUM

This is actually a pleading filed with the trial court. It consists

of a statement of facts constituting a cause of action/accusation or
defense and the applicable Rule of Law upon which a party's definite
legal theory is based. It discusses factual issues according to the
rules on evidence (judicial legal truth), as well as, the legal issues
regarding the applicability of the rule of law to existing conditions,
both of which are supported by the prevailing laws and jurisprudence
or legal authorities. Ultimately, it prays to the court for a favorable
judgment on a party's claim / defense, and for other equitable reliefs.

In addition, the lawyer's conscience in determining and in

arguing what is right or wrong with his definite legal theory is strictly
limited only to one context of truth, the judicial legal truth, which is
reduced from any of the realms or contexts of truth.

In truth, a lawyer may effectively perform his/her role and

responsibility by putting into practice the 1980 philosophy of Atty.
Jose W. Diokno, the developmental legal aid.

In 1993, FLAG changed the word "Aid" to "Advocacy".

132
A Primer on Developmental
Legal Advocacy

What is developmental legal advocacy?

Developmental legal advocacy [DLA] is the underlying

philosophy of FLAG, It was formulated and originally articulated in
the Philippines by the late Atty. Jose W. Diokno in two seminal
papers delivered in 1980 and 1981. DLA represents an attempt to
make legal aid more effective in the areas of human rights protection
and development. It is derived from a structural perspective on the
causes of injustice and an instrumentalist view of the law.

What is DLA's objective?

The objective is to remedy injustice not merely by enforcing

the law but also by changing the law and underlying social structures
which perpetrate or sustain injustice and inhibit development.
Primary reliance in attaining this objective is placed on the efforts of
the people themselves with DLA lawyers performing a supportive
role.

How did DLA come about?

The emergence of DLA was a product of both necessity and

insight; it was not born full-grown. It evolved over the years from
these beliefs which FLAG lawyers shared and which their
experience amply proved:

• That people, not lawyers, should determine what kind of

society they wanted and what changes were needed to
achieve it;
• That these changes were fundamental, not just reforms,
and had to be buttressed by law; and
• That people should organize themselves and work
together with others if they were to gain power enough to
make the changes they wanted.

133
 In FLAG'S view, traditional legal aid had been unable to cope
with a martial law situation. This was not unusual, nor unexpected:
the major role of traditional legal aid is to see that the law is followed
in individual cases—which are to say that the main task of traditional
legal aid is to maintain the status quo with some reforms. Moreover,
under martial law, the people saw that the law itself clearly violated
their human rights and perpetuated social and economic structures
that did so.

So FLAG decided to provide another form of legal aid, and

for want of a better name, it called developmental legal advocacy.

What is the role of DLA in society?

While the late Atty. Diokno recognized the limitations of

traditional legal aid in the developmental process, he harbored no
illusions as to the possible contribution of DLA. He described the
role of DLA as "severely circumscribed, a basically supportive
function whose value lies as much in educating people on their legal
rights, in awakening them to the causes of their situation, and in
assisting them to organize themselves and act together, as in
helping them vindicate their legal rights." Nevertheless, the
distinctive feature of DLA is that it represented an attempt to make
some contribution to the development process.

The concept of DLA therefore emerged to address the

inadequacies in the existing provision of legal aid by focusing on
structural change to remedy injustice and the empowerment of the
communities concerned to effect such change.

What are the basic principles of DLA?

DLA has as its starting point two fundamental tenets. The

first is the vision being pursued, namely, the creation of just social
structures which would facilitate development towards the full
realization of human rights. This emphasis on a structural approach
and a consequently politicized form of legal aid was a by-product of
martial law. Martial law compelled "legal aid lawyers" to confront the
injustice which resulted not only from violations of the law but also
from the increasing number of violations by the law. This led a
number of lawyers to question the legitimacy of the legal system and
underlying social structures. It was in this context that the vision of
supporting structural change was articulated.
134
 The second fundamental tenet underlying DLA is the
recognition that where injustice is perpetrated by the law or by
economic and social structures, legal aid can have a limited but
useful value. This was FLAG'S experience during the 1970's.
Nevertheless even this recognition was seen by the late Atty. Diokno
as contributing to development, although "its contribution will not be
decisive." He stated that one of the most valuable contributions DLA
could make to the development process was the "lesson" that to win
justice, the poor, the dispossessed and the oppressed ... must rely,
not the legal aid, but on their own organized efforts." The emphasis
is therefore placed on the efforts of the people to bring about the
necessary changes. The role of the DLA lawyer is to support the
community in effecting such change.

What then is FLAG'S role?

FLAG has therefore concentrated on public, rather than

private issues. FLAG lawyers determine whether a prospective
client's difficulties stem from a personal or a social problem, the
latter being one that affects an entire community or social sector. If
the former, they refer the client legal aid offices. If the latter, they
accept the case.

One thing must be stressed: FLAG sees its role as purely

supportive. The one thing the FLAG lawyers do not want is to make
clients dependent on them. If they have learned one lesson from
their experience it is this: that clients must rely on themselves, not
on FLAG, to fashion a vision of a better, more human society, and
make that vision come true.

What strategies has FLAG adopted?

FLAG has adopted a two-part strategy to effect legal and

social change necessary for the promotion of human rights and
development. The first part of the strategy involves confronting the
government with the detrimental effects of its policies on the
population and the discrepancies between rhetoric and international
standards on the one hand and reality on the other. This part of the
strategy is designed to make government doubt its own legitimacy
and undermine the support, both foreign and domestic, which it may
enjoy.

135
 The second part of the strategy focuses on the basic sectors
and is designed to increase their awareness of the causes of their
problems and help them to organize and mobilize themselves to
resolve their problems.

What are the functions performed by FLAG lawyers in

furtherance of this strategy?

Functions performed by FLAG lawyers in furtherance of this

two-part strategy include legal services, education, advocacy and
networking. A comprehensive approach in the performance of these
functions does not appear to be required by DLA and FLAG lawyers
adopt a selective approach in practice due to in part to resource
consideration and to the specific needs of their clients.

How is DLA applied in the provision of legal services?

The provision of legal services to community is one function

of FLAG lawyers. The theory of DLA influences the approach
adopted by the lawyer in the performance of this function.

DLA necessitates a holistic approach requiring the lawyer to

engage in a more critical analysis of the problem in order to identify
its source and/or cause of continuance over time. The response to
the problem will generally be conditioned by the FLAG lawyer's
perception of the law itself, notably, that the law and not merely a
misinterpretation of the law, can perpetuate injustice. A distinction is
therefore drawn between legality and legitimacy. While the law, will
always be legal it will be not necessarily be legitimate.

Following from this is a recognition of the inadequacies of the

law and legal processes. In this context a primary or conclusive
reliance on litigation to address the client's problem maybe
misplaced and the need to pursue other social and legal solutions
(metalegal solutions) is accepted.

Therefore, the starting point for a FLAG lawyer in handling a

case will be a critical analysis of the problem and a willingness to
adopt not only judicial but also metalegal tactics for its resolution.

136
 DLA requires the lawyer to reorient his/her approach to the
provision of legal service. Thus:

(1) The FLAG lawyer's starting point is to inform the client

of their rights and the limitations of the legal system.
The FLAG lawyer will outline the limitations primarily
to enable the client to avoid being over reliant on the
legal system to address their problems and to
motivate them to develop other legal and social
solution;

(2) S/he will involve the clients in seeking the social

cause of the client's legal problem, the social
structures and social forces that generated them;

(3) The heightened awareness of the problems and

causes, however, will not lead to action—in fact, it can
only lead to apathy—unless it is coupled with
awareness off possessing the power to act. So FLAG
lawyers encourage the people they serve to organize
and act collectively with others; and to invent and use
metalegal tactics, mass actions that transcend
ordinary legal procedures, without openly defying
existing law, to pressure for change in law and
society.

The transfer of knowledge from the lawyer to the community

also helps to demystify the law and render the legal system more
accessible to the client.

In formulating a response to the problem, the FLAG lawyer

and client will explore not merely a court oriented approach but also
the use of metalegal tactics which might assist in the resolution of
the problem. Metalegal tactics are particularly useful where rights
are either denied through the operation of the law itself or through
ineffective enforcement mechanisms. Examples of metalegal tactics
include the use of petitions, mass attendance at hearings, hunger
strikes, and the like. It must be stressed that the role of the lawyer is
to encourage the client to develop their own metalegal tactics where
such tactics would assist in the resolution of the problem.

137
How does DLA work in terms of the lawyer's relationship with
the client?

DLA envisages a departure from the traditional relationship

which is usually characterized by the clients' dependence on the
lawyer. DLA advocates the establishment of a new type of
relationship which would foster a sense of self-reliance within the
client and reduce his/her dependency on the lawyer.

It is evident that DLA requires considerable interaction with

the clients. The theory of DLA recognizes the importance of a quasi-
organized client community in order to articulate demands and to
engage in dialogue with the lawyer as to the source of and possible
solutions to problems. Thus, a FLAG lawyer is involved in the
process of organizing, a process with three distinctive yet
overlapping components: education, organizing and mobilization.

In all dealings with a client, the FLAG lawyer must always

bear in mind:

First, that aside from his/her responsibility as a lawyer

to successfully litigate the client's case, he/she also has
a responsibility to educate the client not only on what
their rights are but also what their rights should be;

Second, that in order to fulfill this responsibility, the

lawyer must fully explore with the client the causes and
solutions to the problem by means of verbal interaction;

Third, that the lawyer must always keep the client

informed of developments affecting the case, and
should involve the client in the decision-making
process;

Fourth, that the client must always be encouraged to

interrelate with others and to organize themselves so
they can act collectively; and

Fifth, that the lawyer must avoid making the client

dependent upon him/her; and instead should always be
receptive to ways to strengthen the client's self-reliance
and creativity, so they can think for themselves and act
on their own initiative.
138
 Thus, in interviewing the client, the FLAG lawyer must take
great pains to explain in the simplest terms what the law is, and
what it should be; and should also take pains to listen closely to
what the client is saying, in order to determine the client's level of
understanding.

What knowledge, skills and techniques must FLAG lawyers

develop and possess in order to effectively practice DLA?

These are:
> Knowledge of both local and
international law on human
rights;

> Knowledge of the national

situation as well as the
situation of the social sector
or community concerned;

> Interviewing skills: since

effective communication with
the client is essential to DLA,
it is important that the lawyer
have good interviewing skills;

> Litigation skills, which can be

divided into the following:

• Marshalling the evidence

by means of fact
investigation and
discovery procedures;

• Preparing and filing

pleadings;

• Preparing for pre-trial and

trial;

• Examining and cross-

examining the witnesses;

139
 • Introducing and offering
exhibits;

> Negotiation skills; and

> Teaching skills.

What are the indicators that show whether a FLAG lawyer is

really practicing DLA?

The indicators are:

> Whether or not the lawyer

discusses with the client the
possible causes and solutions
to the client's legal problem;

> Whether or not the lawyer

takes pains to explain to the
client not only what his/her
rights are, but what they should
be, and why;

> Whether or not the lawyer

involves the client in the
decision-making process in the
handling of the case; and

> Whether or not the lawyer has

avoided making the clients
dependent or reliant on
him/her, instead has
encouraged the clients to make
their own decision and take the
initiative;
> Whether or not the lawyer has
encouraged the client to
interrelate with others and to
organize themselves to act
collectively.

140
What is the role of FLAG lawyers in providing education?

FLAG lawyers also provide educational services in pursuit of

the strategy for change. The role of the lawyer in this sphere is
derived from the belief that changes in unjust social structures must
be brought about by those directly affected. In order to effect such
change, the people must be aware of their rights and in the
inadequacy of legal processes and/or social institutions which breed
injustice and result in effective implementation of these rights, and
why they are inadequate. This awareness is a first step to enabling
the community to engage in a critical examination to their problems
which, in turn, should assist in the development of strategies to
address such problems. The transfer of knowledge to the clients is
therefore an integral feature of DLA.

This transfer of knowledge can take place through the

publication of primers on legal rights and, at an informal level, by the
manner in which litigation is conducted or through radio program.

FLAG lawyers also conduct paralegal training sessions.

FLAG believes that paralegal training can assist in the
empowerment of the community, in helping people evolve "into self-
reliant, inner-directed, creative and responsible persons who think
for themselves and act on their own initiative" in addressing and
working out solutions to their problems.

What is the role of FLAG lawyers in networking?

In furtherance of DLA, FLAG lawyers also engage in

networking. The role of the lawyer in this regard is to urge the
community to cooperate with other groups. This role addresses the
alienation of the base sectors from each other and the need to
develop and strengthen cooperation between sectors. Networking is
not, however, confined to the base sectors and FLAG lawyers
engage in networking with other non-governmental organizations
and peoples' organizations in order to maximize resources and to
create and effective division of labor. It should be pointed out,
however, that this division of labor is not a rigid one and there is no
question of the role of the lawyer going beyond the purely judicial
sphere.

141
What is the role of FLAG lawyers in advocacy?

FLAG lawyers also perform an advocacy role. The focus of

the lawyer in this context is on the organs of state notably
government and legislature. This role originates from the strategy to
confront government with the detrimental effects of its policies on the
population and the inconsistencies between government rhetoric,
international standards and reality. In the performance of this role,
FLAG lawyers engage in research and documentation, drafting
critiques and position papers, drafting legislative bills, lobbying
members of Congress and participating in public hearings,
campaigns and fact finding missions. At an informal level, FLAG
lawyers perform this role through the effective use of pleadings
during the course of litigation.

Why is DLA important?

DLA involves the lawyer in tasks beyond what are

traditionally associated with the legal profession.

DLA is essentially a pragmatic philosophy designed to make

legal aid more effective in the areas of human rights protection and
development. Although it evolved in the martial law period, DLA
continues to retain its validity and relevance in the Philippines today.
Although DLA was significantly utilized to vindicate civil and political
rights, it is being increasingly used to vindicate rights of an
economic, social and cultural nature. The flexibility inherent in the
framework philosophy of DLA enables it to respond to the changing
context in which it operates and ensure its continuing relevance.

DLA is important because it is the cornerstone of being a

FLAG lawyer. Without a firm foundation in developmental legal
advocacy, and certain necessary skills, a FLAG lawyer will not be
true to his/her commitment to the organization, and would not be
able to effectively render services to the poor and the oppressed.
[This is reproduced with permission from the FLAG National Office].

142
Legal Assistance and
The Business of Law
This phrase, "the poor and the oppressed", legally refers to
the underprivileged. Thus, "Pursuant to the provisions of Article VIII,
Section 5 (5) of the Philippine Constitution, the Supreme Court
adopts and promulgates rules concerning the protection and
enforcement of constitutional rights, pleading procedure in all courts,
the admission to the practice of law, the Integrated Bar, and the
legal assistance to the underprivileged" [Preamble, Rules of Court].

Gleaned from the foregoing, the underprivileged is a class of

persons who direly need legal assistance and who belong to below
the stratum of the privileged. The former exercises or enjoys a
minimal of their constitutional rights to life, liberty, property and to
due process, either because:

1) They are not fully aware of such rights;

2) They don't know how to protect or enforce their rights

before any court, tribunal, administrative body, commissioner
or referee; and

3) They don't have enough resources to organize

themselves, neither the necessary skills to formulate general
welfare policies and to lobby before the legislative body for
legislative acts conformable to their own concept of natural
law or to the universal norm of justice—the common good.

The underprivileged class certainly needs the assistance of

lawyers who can harmonize them with law and justice, and can
reconcile people's rights with governmental powers. Likewise, the
Philippine Republic calls for developmental lawyers who can work
with its government or its people in the privileged class in balancing
between "jobs and justice, food and freedom, investments and
integrity, economics and ethics, development and democracy;
in short, liberty and prosperity", as extolled by former Chief
Justice of the Supreme Court, Hon Artemio V. Panganiban.
143
 To effectively implement the rule on the legal assistance, all
new lawyers are required by our Supreme Court to join the
Integrated Bar of the Philippines, and thereafter, to attend the
Mandatory Continuing Legal Education, and to participate in all other
special training/seminar-workshops sponsored and/ or authorized by
the Supreme Court wherein they are abundantly nourished with
recent laws, rules and jurisprudence, including those ideals invoked
in the Centennial Prayer for the Courts and those contained in the
Philippine Constitution. Lawyers are always guided with "A Vision for
the Judiciary" of former Chief Justice Hilario G. Davide, Jr, to quote:

"A judiciary that is independent, effective and

efficient; and worthy of public trust and confidence.

A legal profession that provides quality,

ethical, accessible and cost-effective legal service to
our people and is willing and able to answer the call of
public service."

Beginning July 1, 2009, all practicing lawyers are required to

render free legal aid services in all cases involving indigent and
pauper litigants [Sec. 3, BM No. 2012, Rule on Mandatory Legal Service].
This rule seeks to enhance the duty of lawyers to society as agents
of social change and to the courts as officers thereof by helping
improve access to justice by the less privileged members of society
and expedite the resolution of their cases [Sec. 2, BM No.2012].

"Why do we help the underprivileged?" Chief Justice Helario

G. Davide, Jr. says that "Reason must rule in law." The reason
behind the rule of rendering legal assistance to the underprivileged/
indigents/ pauper litigants is the same reason behind the Natural
Law -- the principle of interconnectivity, as what the Indian Chief
Seattle spoke to a white man:

"All things are connected...This we know. The earth

belongs to us, we belong to earth. This we know. All
things are connected like the blood, which unites one
family. All things are connected. Whatever befalls
the earth, befalls the children of the earth. We did not
weave the web of life, we are merely the strands in it.
Whatever we do to the web, we do to ourselves."
[Shared during the Envoronmental Law Seminar-workshop

144
 for selected judges of Caraga and Davao, Grand Regal
Hotel, Davao City, May 18-19, 2006].

Admittedly, there are times when we are aware that what we

do to our neighbors, especially the underprivileged, we do actually to
ourselves or we exactly exercise our right to self-preservation. When
we render legal service and help someone to observe the rule of law,
and when everyone observes the rule of law, everybody eventually
experiences a just and humane world order and enjoys a global
peace and order. A poem goes:

When there is an observance of the rule of law,

No confusion as there is a legal profession;
When there is a legal profession,
No anxiety, as there is an independent judiciary;
When there is an independent judiciary,
No cause to panic as there is a sovereign republic;
When there is a sovereign republic,
No aim for colonization as there is an international
cooperation;
When there is an international cooperation,
No human commodity as there is respect for humanity;
When there is respect for humanity,
No global strife as there is love for all forms of life;
When there is love for all forms of life,
No culture of death flows as there is
An observance of the rule of law.

Practically, when we encourage the litigants to settle their

case amicably, to restore their relationship thereafter and to love one
another, we would inevitably benefit from it, because we could serve
more clients and would earn more legal service fees. The
community would also benefit from the parties' restored
relationships—the communal peace, the result of the appropriate
application of Restorative Justice, espoused by Associate Justice of
the Supreme Court, Hon. Amuerfina A. Melencio-Herrera [Restorative
Justice: A sourcebook, Published by the CBCP-ECPC, 2004, P. 54].

Communal Justice will initially be restored by law students

who may be able: 1) to accompany with the judges and their staff in
the conduct of their monthly jail visitation and inspection; and/ or
interviewing the detainees as to the status of their cases and health
conditions; 2) to assist the relatives of the victims of "extra judicial
145
killings" and "enforced disappearances" in data gathering; 3) to join
with the NGOs / LGUs in fact-finding and medical or relief missions
affecting the marginalized sectors, including the indigenous people.

Global justice and peace will be approximately achieved or

the planet earth will be partly protected from all the causes and
effects of global warming or climatic change by the conscientious
law students and relevant lawyers investigating and charting the
environmental trends and threats; and studying the environmental
concepts, principles, laws and jurisprudence preparatory to their
environmental litigation and developmental advocacy.

At times, we ponder and argue with ourselves that: Law is

our business and business is business. We have to earn much in
order to maintain our standard of living and to support our elegant
law offices now. Otherwise, we would be downgraded to the
underprivileged class and would die soon like a rat.

In such moment, we really need to meditate, renew and

affirm our trust in "The Lord Our Shepherd" [Ps. 23: 1-6, GNB],
positively visualizing, verbalizing and actualizing that:

"The Lord is my shepherd;

I have every thing I need.
He lets me rest in fields of green grass,
and leads me to quite pools of fresh water.

He gives me new strength.

He guides me in the right paths,
as he has promised.

Even if I go through the deepest darkness,

I will not be afraid, Lord, for you are with me.
Your shepherd's rod and staff protect me.

You prepare a banquet for me,

where all my enemies can see me;
You welcome me as an honored guest
and fill my cup to the brim.

146
 / know that your goodness and love
will be with me all my life;
and your house will be my home
as long as I live."

Viewed from the foregoing, Hon. Chief Justice Reynato S.

Puno aptly defined the very essence of lawyering by declaring that "/
say and I say it again, the business of law is not a business but
service to God and humanity."

THE SUMMARIUM

In sum, it is in service to God that we restore our eternal

relationship, or connectivity with Him or with His creation, or with His
duly constituted state, church and family authorities, with His
children, the peoples on earth, our fellow citizens, our neighbors,
and the parties to controversies claiming /depending their rights and
justice under the law [Art. 10, NCC], based on facts judicially found to
be true.

Truly, in a religious context, the central message of the

ideals and visions on which trial techniques must work is for the
lawyers to render their legal services for the restoration of litigants'
serviceable relationships, with love, joy, peace, patience, kindness,
goodness, faithfulness, humility and self-control [Gal. 5:22-23, GNB].

Self-control in law practice simply means: that a trial lawyer

must be guided by the rule of law, by the rules of practice, pleading,
and on evidence; that every part of his/her client's visual structure of
legal theory must be interconnected; that his/her client's
claim/defense must be based on ultimate facts duly supported by
evidentiary facts elicited through the examination of witnesses'
personal circumstances before the trial court.

In or out of court activities of lawyers, God or love or justice

must rule in law, because God is just; God is love [Dt. 32:4; Un. 4:8,
GNB]. In truth, Love is the Law of God [Cf. Mat. 22: 37-39, GNB].

God bless us all!

147
 From the Author
I acknowledge my indebtedness to Hon. Justice Federico B.
Moreno for his Philippine Law Dictionary and Hon. Judge Narciso M.
Aguilar for his Revised Rules on Evidence Annotated, 2004 Ed.

I also extend my heartfelt appreciations to the FLAG National

Office through the FLAG Secretary General, Ms. Maria Socorro I.
Diokno, for allowing me to reproduce the whole or a portion of the
following;

1) FLAG'S A Primer on Developmental Legal Advocacy,

Pub.1995;

2) FLAG'S Guide to Understanding the Forensic use of DNA

Paternity Reports, Copyright 2004; and

3) FLAG'S Primer on the Innocence Project Post Conviction

DNA Testing in the Philippines, Copyright 2004;

I am also grateful to the writers, editors and publishers of the

IBP Journals, the Court Systems Journals, the Bench Marks, SCADs
CDSCDs, SCRA, Supreme Court Circulars; and to all distinguished
lecturers and speakers of the IBP, PTJLI, and Phija's Sponsored
Seminars, in association with the local or international NGO's and
LGU's since November 5-10, 1979 to January 5, 2007.

For the substance, framework and direction of this book, I

acknowledge the significant contributions of:

1) Atty. Jose W. Diokno's tips on Presentation of Oral

and Documentary Evidence. [U.P.L.C., TRIAL
TECHNIQUES, Proceedings of the Institute on
Trial Techniques 1979, pp. 167-190].

2) Ambassador Amelito R. Mutuc's lecture on

General Courtroom Deportment, [id., pp.1-10]; and

3) Fr. Michael D. Moga's Is there truth?. The

ENDURING QUESTIONS, Copyright 2005 by ST
PAULS Philippines.

148
PRACTICE COURT

THE ART OF
ELICITING EVIDENTIARY FACTS
AND OF
ASCERTAINING THE TRUTH
THIRD EDITION
AUGUST 15, 2009

JUDGE CARLOS B. CAMBRAY

Philippine Copyright 2007 apd 2009

JUDGE C A R t O S B. CAMBRAY
MTC, Nasipit, Agusan del Norte
A.B. Pol. Sci. (UC); L.L.B. (JRC)
Practice Court II Instructor
College of Law,
Father Saturnino Urios University (FSUU)
Butuan City

ALL RIGHTS RESERVED

No. 635

No part of this book may be reproduced in any way without a written

permission from the author.

Any copy of this book without the author's original signature and a
corresponding number on this page proceeds from an illegitimate source
and its possession by anyone is unauthorized.

ISBN 978-971-691-846-5
 To my loving wife Lolita Lacre Daya,
to my amiable son Janus, affable daughter-in-law Izyl,
and my precious grandson Zane Benedict,
also to my prayerful parents and ascendants,
and most especially to our Lord Jesus Christ
who "commanded us to preach the gospel to the people
and to testify that He is the one whom God has appointed judge of
the living and the dead."* And told us,
"My judgment is righteous because I do not seek
My own will but the will of the Father who sent me. "**

"John 5:30, NKJV

Acts 10:42, GNB
 PREFACE TO THE THIRD EDITION

In this third edition, the author portrays further the state of

facts in PPA v. City of lloilo case in order to amplify the need of
adopting a party's definite legal theory of the case or defense
[pp. 18-19], and the import of using the party's written and visual trial
guides [pp. 38-41], These are essentially the effective tools of
eliciting the pertinent evidentiary facts, and of proving/disproving the
ultimate facts upon which a party's claim or defense is based.

Pursuant to SC Adm. Cir. No. 82-2006, adopting the Civil

Service Commission Memorandum Cir. No. 12, S. 2005 on the use
of non-sexist language, and as suggested by the former Chief
Justice of the Supreme Court, Hon Artemio V. Panganiban, some
words with sex-linked characteristics, roles, symbols or titles being
used in the previous editions have been completely transformed to
the gender-fair terms in this new edition.
The names and/or titles of some authorities are accordingly
adjusted or corrected. And, for a clearer explanation of this legal
work, the extra/ misplaced/ missing letters, words, phrases or
clauses caused by the author's act / omissions are also rectified.

Again, the author wishes to thank the Central Books, its

officers and staff, in printing this present book as corrected on this
Feast Day of Assumption of Our Mother Mary, August 15, 2009.

C. B. C.

PREFACE TO THE SECOND EDITION

In preparing this second edition, the author endeavored to

correct some clerical errors which he committed through oversight,
to improve the arrangement of the topics, and to amplify some
principles and practices on the "in and out of court advocacies",
with pertinent cases decided by the Hon. Supreme Court. Also, he
included therein the comment of Senior Justice of the Supreme
Court, Hon. Leonardo A. Quisumbing, on "the indeterminacy of
law thesis" being felt by many American law students.
The author wishes to thank the Central Books, its officers
and staff, in printing the first and second editions of this book.

C. B. C.
March 30, 2009.
 Republic of the Philippines
Supreme Court of the Philippines
REGIONAL TRIAL COURT
OF AGUSAN DEL NORTE AND BUTUAN CITY
th
10 Judicial Region
Branch 5
Butuan City

OFFICE OF THE EXECUTIVE JUDGE

The Practice Court—The Art of Eliciting Evidentiary Facts

and of Ascertaining the Truth—authored by Hon. Judge Carlos B.
Cambray, is an excellent guide for those who have the zeal and
devotion to the rule of law and deep concern for an effective and
efficient disposition of justice.

The book which is written in simple style will prove

rewarding and profitable to students of law, researchers, lawyers,
prosecutors, and judges because it advances the art of lawyering
for a successful practice of the legal profession.

Therefore, I personally endorse this book not only to

students of law, members of the Bar and the Bench, but also to
every Filipino who has that deep passion and dream to see an
independent and efficient administration of justice through the
combined efforts of honest and competent judges, and dedicated
lawyers, and prosecutors.

Butuan City, Philippines, December 22, 2006

(Sgd) HON. AUGUSTUS L. CALO

Executive Judge
 Foreword
This guidebook on Practice Court is the first of its kind. This
work deals essentially on the lawyers' tasks in building and/or
demolishing the parties' definite legal theories, through the
examination of witnesses' personal circumstances. This work also
helps develop the lawyers' skills in using the written trial plan and
visual trial guide.

This guidebook reflects the author's fifteen years of

experience in trying cases and in confronting with the parties,
witnesses and the idiosyncrasies of counsels as displayed in courts.

Undoubtedly, this book is both motivational and instructional

for the future lawyers, as can be initially gleaned from the author's
preface.

(Sgd) ATTY. JOSEFE C. SORRERA-TY

Dean, College of Law
Father Saturnino Urios University
Butuan City
December 22, 2006
 Preface to the First Edition
"One needs to put technique to work
upon ideals and with vision..."
-Atty. Jose W. Diokno

The ability of a lawyer in limiting his eliciting questions only

to the facts in issue, or to some acts or omissions allegedly done by
the accused or defendant constituting a cause of action/accusation
or defense as provided by law, is one of the techniques to secure a
just, speedy and inexpensive disposition of cases.

Law is the rule of reason applied to the existing conditions

[Gubagaras vs. West Life Insurance Co., 1628-R, Jan. 6, 1949; F. B.
n d
Moreno, Phil. Law Diet., 2 ed]. The truth of which is ascertainable by
evidence [Sec.1, Rule 128, RRC] depending on the counsel's manner
of presenting his/her evidence to court [Rule 132, RRC]. As such, "A
well handled trial might mean victory while a poorly-handled one will
mean defeat", as aptly said by Ambassador Amelito R. Mutuc in
one of his lectures on General Courtroom Deportment. [U.P.L.C.
Proceedings of the Institute on Trial Techniques 1979; p.3]

Planning the trial in advance is said to be the most important

technique that lawyers may have. The same may either be simple
or elaborate or that which can be kept in mind or written down.

Hence, this guidebook recommends to law students the

necessity of adopting a written trial plan and a visual trial guide
in introducing a party's definite legal theory via examination of
witnesses' personal circumstances.

Along with the judicially and constitutionally recognized

ideals, visions, and the lawyers' responsibility of initiating law reform
[Canon 4, Code of Professional Responsibility], this guidebook
shares to law students the basic legal concepts which the author
has gained from the law practitioners, judges, justices, lecturers of
IBP & Philja Convention-Seminars, legal writers and luminaries.

Butuan City, Philippines, December 8, 2006.

(Sgd) Judge Carlos B. Cambray

 Acknowledgment
The author is very much grateful to those who in one way or
another contributed much in the production of this humble work.

Endless gratitude is expressed to Atty. Glocelito C. Jayma,

Mr. Sofronio R. Salas, Ms. Joan B. Alabat-Torralba, Mr. Spencer M.
Toribio and Mr. Michael B. Tero for their research materials and to
all the lawyers who filed their best pleadings.

Special thanks are conveyed to Ms. Liza N. Cadelina, Mr.

Janus D. Cambray, Ms. Elinor De la Cruz, Ms. Marita B. Estoque,
Ms. Bernadith R. Lindo, Ms. Norma S. Llido and Ms. Joanna Krish
M. Galero in encoding the draft of this legal work.

The author also wants to express a heartfelt gratitude to

Atty. Josefe C. Sorrera-Ty, Dean of the College of Law, Father
Saturnino Urios University (FSUU), Butuan City; Asst. Prov'l Pros.
Danny C. Serrano, Asst. Prov'l Pros. Cyril G.Viva and Asst. Prov'l
Pros. Ruth Carloto-Sanchez (Agusan del Norte); Atty. Love Joy B.
Quiambao, Atty. Arnel C. Rempillo, and Atty. Nemeson B. Canete
(Public Attorney's Office—Agusan del Norte and Butuan City) for
the encouragements and suggestions which have indeed inspired
him to finish this guidebook.

The author conveys his deep appreciation to Atty. Anthony

P. Vitor, MDR, DILG, Reg. 13, Butuan City, for assisting in the
publication of this work. For editing the text and in polishing the
form of this book, he also expresses his admiration to Atty. Gil M.
Cembrano, and Atty. Dennis C. Perang.

Special thanks are also made to my superiors in the

Judiciary, to my colleagues in the government and friends in the
legal profession and more specially those who have expressed in
this guidebook their kind comments and remarks.

Above all, special acknowledgments are made to the Divine

Author, His human writers, facilitators, publishers and distributors of
the Holy Bible, the Quran, and the Hadith, the repositories of state
laws and judicial ideals.

(Sgd) Judge Carlos B. Cambray

 TABLE OF CONTENTS
Foreword
Preface
Acknowledgement

PART I: THE SCIENCE AND ART OF PRACTICE COURT

CHAPTER 1 ;

Introduction, 3
The Essential Trial Technique, 3

CHAPTER 2.

The Actions, 5
The Trial, 7
The Judgment / Decision, 10

CHAPTER 3 11

The Channels of Truth, 11

The Contexts of Truth, 11
The Legal Truth, 13

CHAPTER 4 17

The Hypothesis of a Case/Defense, 17

The Party's Definite Legal Theory, 17
The Law of the Case, 19

CHAPTER 5 21

The Rule of Law and the State of Facts, 21

The Ultimate Facts, 23
The Evidentiary Facts, 25
The Burden of Proof on Ultimate Facts, and
The Burden of Evidence on Evidentiary Facts, 25
The Controverting Facts, 28
The Channels of Evidentiary Facts, 30
The Impeaching Facts, 32
The Rehabilitating Facts, 34
The Qualifying Facts, 35
The Resume: Categories of a State of Facts, 35
 CHAPTER 6 37

The Party's Written Trial Guide, 37

The Party's Visual Trial Guide, 38
The Quality of Examiner's Questions, 41
The Legal Objections, 44
The Admissibility / Inadmissibility
and Credibility of Evidence, 47

CHAPTER 7 49

The Lawyer's Basic Function and Task, 49

The Lawyer's Persuasive Personality, 51
The Lawyer's Other Skills, 53
The Judge's Predilections & Idiosyncrasies, 54
The Indeterminacy Thesis, 56
The Law Student Practice Rule, 57

PART II: THE TYPICAL EXERCISES OF INTRODUCING A

PARTY'S DEFINITE LEGAL THEORY

CHAPTER 1 61

Introduction, 61
The Arraignment and Plea, 63
The Preliminary Conference, 78
The Pre-trial Conference and Pre-trial Order, 80
The Offer of Witness' Testimony, 84

CHAPTER 2 87

The Examination of Witnesses, 87

Direct Examination, 87
Cross-examination, 97
Re-direct Examination, 98
Re-cross-examination, 100

CHAPTER 3 1 0 1

Offer of Exhibits, 101

Prosecution's Formal Offer of Exhibits, 101
Demurrer to Evidence, 103
Defense' Evidence, 105
Rebuttal Evidence, 110
Sur-rebuttal Evidence, 119
 Submission of Position Papers, 123
The Court's Ruling, 124
Writer's Insights and Recommendations, 124
The Mock Pre-trials and Trials, 125

PART III: THE LAWYER'S OUT OF COURT ACTIVITIES

Law Practice Defined 129

A Conscientious, Developmental, Relevant, and

Responsive Position Paper or Memorandum, 130

A Trial Lawyer's Position Paper / Memorandum, 132

A Primer on Developmental Legal Advocacy 133

Legal Assistance and the Business of Law 143

The Summarium, 147