“Courts do not accept a witness testimony perceived to be biased or prejudiced because it has no fctual basis”
To cross-examine a witness is to impeach his or her statements made in court via direct examination. The examination of a witness undergoes four stages. These include: direct examination, cross-examination, redirect examination, and re-cross examination.
Every witness examination starts with direct examination. This is also known as the examination-in-chief, where a witness is examined with the facts relevant to the issue (Section 5, Rule 132, Rules on Evidence).
There is no required number of witnesses to be presented since the weight of the evidence will be determined by the judge based on the witnesses’ ability to perceive and make known his perception to another. In civil cases however, “[T]he court may also consider the number of witnesses, though preponderance is not necessarily with the greater number” (Section 1, Rule 133).
The party has reasonable discretion to present witnesses to describe to the court his or her side of the story.
However, “[T]he court may stop the introduction of further testimony upon a particular point when the evidence upon it is already full that more witnesses to the point cannot be reasonably expected to be additionally persuasive” (Section 7, Rule 133).
In civil cases, direct examination is made by submitting judicial affidavits of witnesses, while in criminal cases in the municipal or metropolitan trial courts, sworn written statements of law enforcement officers, affidavits submitted during preliminary investigation, or if the aforementioned are not available, judicial affidavits may be submitted in lieu of direct examination (Revised Guidelines for Continuous Trial).
In criminal cases in the Regional Trial Court (RTC), the direct examination is made in open court.
However, sworn written statements of law enforcement officers, affidavits submitted in preliminary investigations, or judicial affidavits, in case the former are not available, are accepted as direct examination for crimes that are transactional in character.
These crimes include falsification, malversation, estafa, or other crimes where the innocence of the accused can be established through documents (Revised Guidelines for Continuous Trial).
After the completion of the direct examination, the counsel of the other party may cross-examine the witness. Essentially, cross-examination is conducted to test the accuracy, truthfulness, and freedom from interest and bias of the statements, and to elicit facts bearing upon the issue (Section 6, Rule 132).
There are various ways of impeaching or cross-examining a witness, and these include impeachment by: (a) prior criminal conviction; (b) reputation of bad character; (c) prior bad conduct; (d) prior inconsistent statement; (e) presenting interest or bias; or (f) inadequate perception.
Impeachment by prior criminal conviction. To be able to use a previous conviction in cross-examining a witness, he or she must have been convicted by a final judgment of a crime punishable by a penalty in excess of one year, or a crime involving moral turpitude, regardless of the penalty (Section 12, Rule 132). Hence, convictions that are on appeal or complaints under preliminary investigation cannot be used to cross-examine the witness.
In common law, crimes that include elements of dishonesty or contain false statements are known as “crimen falsi”. These are akin to crimes involving moral turpitude. Examples include perjury, subornation of perjury, false testimony, or filing false tax returns. However, in our jurisdiction, as long as the penalty for conviction exceeds one year, the prior conviction can be used to impeach the witness even if the offense in “non-crimen falsi”.
Impeachment by reputation of bad character. The witness may be impeached based on his general reputation for truth, honesty, or integrity. It may be easy and common to impute bad character on another but courts cannot be convinced by baseless contentions.
Proof of good or bad character or traits of character may be admitted if made by testimony regarding reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowed for relevant specific instances of conduct (Section 54, Rule 130).
Impeachment by reputation of prior bad conduct. In instances where character or traits of character is an essential element of a crime, charge, or defense, the witness may be confronted with specific past conduct to refute evidence (Section 54, Rule 130). However, similar previous acts cannot be admitted, as to do so would confuse the issues in the case.
The duty of the prosecution is to prove only the elements of the current crime and not to prove the prior bad acts.
However, previous similar conduct may be received in evidence to prove specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like (Section 35, Rule 130). Examples include modus operandi for repeated bank robberies, or body marks or designs imprinted on rape victims.
Impeachment by prior inconsistent statement. Before a witness can be impeached by evidence of statements made at other times that are inconsistent with his or her present testimony, the proper foundation should be laid.
The circumstances of time, place, and persons present must be presented and the witness asked whether the statement was made; and if so, he or she must be allowed to explain them (Section 14, Rule 132).
If the statement is in writing, this must be shown to the witness before any question is put forth concerning them (Section 14, Rule 132).
On cross-examination, a witness may be allowed to refresh his or her memory with respect to the fact with anything written, recorded, or directed when the fact was still fresh to them (Section 16, Rule 132).
Impeachment by presenting interest or bias. The Merriam-Webster dictionary defines bias as a personal or sometimes unreasoned judgment. It defines prejudice as an adverse opinion or leaning formed without just grounds or before sufficient knowledge. Bias or prejudice may be brought about by upbringing, financial background, past suffering, or injustice, among others.
Courts do not accept a witness testimony perceived to be biased or prejudiced because it has no factual and evidentiary basis. It is usually an opinion or judgment which is unfounded. While religious or political beliefs may not be used as basis to disqualify a witness from testifying, it may be used to discredit him or her by showing bias or prejudice.
Impeachment by inadequate perception. Since witnesses are expected to testify on facts or events perceived, their perception may be tested during cross-examination for accuracy.
If a witness is asked in court to identify the offender, the cross-examiner may inquire about his distance from the offender, his vantage point, his visual acuity or whether he wears corrective lenses, and the lighting in the vicinity of the crime.
A damaged witness after cross-examination may be rehabilitated by the proponent’s counsel during redirect examination, or by presenting another witness to cure or address the statements of the impeached witness.
Redirect examination allows the witness to explain or supplement his or her answers during cross-examination. (Section 7, Rule 132). Thereafter, the adverse party may conduct a re-cross examination on matters stated by the witness in the redirect examination (Section 8, Rule 132).
As a law student, I have heard it said that “cross-examination is an art,” and I expect many more generations of law students to continue hearing this phrase.
To cross-examine a witness does not require a specific acumen from the cross-examiner, just knowledge of the Rules on Evidence, coupled with keen observation of the facts, and accumulated experience inside the courtroom.