The motion to strike the answer must be made before the witness examination is terminated or concluded
One of the lessons a lawyer learns in court is how to move to strike out the answer of a witness.
The court can only order the striking out of answers upon proper motion of the concerned or affected party.
The lawyer must be ready to interpose an objection to an incompetent, irrelevant, or improper question.
However, it may happen that a witness gives an answer to a question despite the speed at which the lawyer objects to it. The remedy of the objecting lawyer is to move to strike out the answer.
Under the 2019 Rules on Evidence, the grounds on which striking out the answer of a witness is permissible, are as follow: (a) when an answer is given before the adverse party fully voices the objection; (b) when an answer is not responsive to the question; (c) when an answer is given without a question being posed or when it is beyond the limits set by the court; or (d) when the answer given is a narration and not a response to a question (Section 39, Rule 132).
It may happen that incompetent evidence “is received conditionally on the assurance of [the] counsel that he will supply [the] necessary [evidentiary] foundation, [but] which [if] he fails to do, the court should exclude the evidence on its own motion, or, the objecting party should move to exclude it” (Francisco, Evidence citing 58 Am. Jur. 134-135).
“Where a witness answers a question before an objection can be interposed, and the court thereafter sustains an objection to the question, it has been held that the answer to the question cannot be considered as evidence in the case even though no motion to strike the answer is made” (Francisco, Evidence citing 88 C.J.S. 267-269).
“A motion to strike out evidence may be directed against a particular item of evidence on the testimony of a particular witness or some part thereof, or it may be for the purpose of having all the evidence stricken out…it should specify the grounds upon which it is based… all other grounds are thereby waived” (Francisco, Evidence citing 55 AM. JUR. 132).
“A party cannot insist that competent and relevant evidence be stricken out for reasons going to its weight, sufficiency, or credibility… [neither can he] move to strike it out because it proves unfavorable to him, even though it is inadmissible” (Francisco, Evidence citing Mobile Light v. Portiss and Fidelity & Casualty Co… v. Griner).
“The court may, on motion, strike out part of an answer where the meaning of the part left is not changed thereby; but cannot strike out qualifying words in the answer thereby changing it into a positive statement, or strike out a part of an answer so as to leave it unintelligible” (Francisco, Evidence citing 88 C.J.S. 287).
“Evidence may be stricken on motion, on the ground that it is wholly incompetent, immaterial, or irrelevant, and prejudicial” (Francisco, Evidence).
An answer of a witness that has no relation to the fact in issue or irrelevant can be stricken from the records upon proper motion.
However, there are instances when irrelevant, immaterial, or prejudicial questions are allowed to remain in the records subject to the discretion of the court.
While the grant or denial of the motion to strike is left to the court’s discretion, “the right to have it stricken is not subject to the discretion of the court.”
“[W]here the incompetency or lack of qualification of a witness to testify on a particular matter clearly appears, his testimony thereon should be stricken. It is a sufficient ground for a motion to strike [if] want of knowledge of a witness … appeared on cross-examination after the court had [previously] ruled that the witness was competent” (Francisco, Evidence citing 88 C.J.S. 269-273).
Where the “testimony on direct examination was based on hearsay, his testimony is subject to a motion to strike and should be stricken. Likewise, testimony should be stricken where it is apparent that the witness is not testifying to anything within his own knowledge” (Francisco, Evidence citing 88 C.J.S. 269-273).
“Where testimony apparently based on hearsay is not clear, the court may temporarily overrule a motion to strike, and have further questions asked; and, if the objection is not thereafter removed, it has been held that a failure to strike is [an] error” (Francisco, Evidence citing 88 C.J.S. 269-273).
Where the subject matter of the evidence is privileged and the question was answered by the witness, the answer may be the subject of a motion to strike.
An answer to a question not based on facts but on speculation and probability, or an answer which argues instead of responding may also be stricken from the records.
If the answer is vague, unintelligible, or confusing, it may be stricken on motion.
“Testimony introduced without a proper foundation therefor, or on an insufficient foundation, may be stricken,” such as presenting secondary evidence of a destroyed document without proper foundation (see Francisco, Evidence citing 88 C.J.S. 269-273).
The testimony of a witness on a document not pre-marked during pre-trial may be presented during trial if properly reserved pursuant to Rule 18 of the 2019 Rules of Civil Procedure.
Hence, an answer pertaining to the reserved document is not a ground for a motion to strike.
“On the other hand,… evidence competent for any purpose, and relevant to any issue, should not be stricken, and evidence which, although inadmissible at the time it is admitted, subsequently becomes admissible need not be stricken” (Francisco, Evidence citing 88 C.J.S. 269-273).
The timeliness of a motion to strike “may depend on the situation presented in a given case, and it has been declared that there should be no strict rule. However, inexcusable delay in moving to strike… is ground for denying the motion” (Francisco, Evidence citing 88 C.J.S. 282-283).
“Ordinarily a motion to strike objectionable testimony must be made at the time the testimony is given [when] the impropriety of the testimony is then apparent. If the impropriety of the testimony is not apparent[,] it should be made immediately after its impropriety becomes apparent, as where the ground for the exclusion of the evidence appears for the first time on cross-examination” (Francisco, Evidence citing 88 C.J.S. 282-283).
The motion to strike the answer must be made before the witness examination is terminated or concluded.
Thus, the motion can no longer be entertained when the examination of another witness has commenced, when the party has rested its case, or when the case is submitted for resolution.
The court has to rule on the motion to strike an answer in a timely manner. The ruling of the court if tainted with grave abuse of discretion amounting to lack or excess of jurisdiction may be questioned through a Petition for Certiorari under Rule 65.
Knowing how to move to strike an answer is important because it limits the presentation of evidence to material and relevant matters, and will prevent the court from rendering judgment based on muddled facts.
