Your Honor, my next witness

"Who, then, must tell the truth?"


There are lawyer movies that have captured the imagination of a generation. One of those is the movie “A Few Good Men” which was released in 1992. Tom Cruise played the role of a lawyer, Daniel Kaffee, assigned to defend two marines being prosecuted for the murder of another marine. Opposite Cruise, Jack Nicholson played the role of Colonel Jessup who ordered the extermination of Santiago, the victim.

The popular courtroom examination of Colonel Jessup (Nicholson) culminated when Kaffee asked him, “Did you order the Code Red?” Jessup replied, “You want answers?” to which Kaffee quipped, “I want the truth!” Jessup then retorted “You can’t handle the truth! Son, we live in the world with walls that must be guarded…”

Jessup went on to say: “You weep for Santiago and curse the Marines… Santiago’s tragic death saved lives. And my existence, while grotesque to you, saves lives! … [Y]ou need me on that wall. We use words like honor, code, loyalty… you use them as a punchline. I haven’t the time … to explain myself to a man who needs my protection but questions the way I do it.”

His monologue continues, “Better just to thank me or pick up a gun and stand a post. But I don’t give a damn what you think you are entitled!” Again, Kaffee asked him if he ordered the Code Red, to which Colonel Jessup, at the end of his wits, exclaimed, “You’re goddamn right I did.” The question leading to the confession of Jessup in open court was a gamble that the lawyer Kaffee took and it paid off.

Another movie is The Rainmaker, a legal drama released in 1997 based on John Grisham’s novel of the same title. Matt Damon played the role of Rudy Baylor, a young and inexperienced lawyer who represented a couple against an insurance company in a damage suit. The insurance claim, if granted, would have allowed their son Donny Ray to undergo a bone marrow transplant to save his life.

To cap the presentation of evidence, Rudy Baylor presented in court the deposition of Donny Ray which was taken in his home before he died. The deposition took the place of the actual testimony in court because the witness-offended party had died. The process is also allowed in the Philippines if there is an opportunity to cross-examine the deponent before he dies.

As presented in the plots of the films, the ultimate quest of every litigation is the ascertainment of the truth in order for justice to be served. The Philipppine Rules on Evidence has codified that evidence is the means in a judicial proceeding to establish the truth as to the matter of fact. (Section 1, Rule 128, 2019 Amendment to the Rules on Evidence [AROE]). Hence, the object of every adversarial proceeding is to find the truth.

Who then must tell the truth? It is the duty of the person who testifies in court, better known as the witness. Only those who perceive, and upon perceiving, can make known their perception to others, are qualified to be a witness. (Section 21, Rule 130, 2019 AROE). There is no requirement of special skill, knowledge, experience, training or education to be an ordinary witness unless the witness will testify as an expert.

In simpler words, the witness can perceive with the use of his or her five senses, and whatever he or she may have perceived may be communicated when he or she testifies in court. It is important to know that the witness can only testify to those facts which he or she has personal knowledge of as derived from his or her perception (Section 22, Rule 130, 2019 AROE).

While a person may be qualified to testify because of personal knowledge of the facts, he may still be disqualified to sit on the witness stand for a number of reasons. A wife is disqualified from testifying against her husband or vice versa except if it is a civil or criminal case by one spouse against the other (Section 23, Rule 130, 2019 AROE).

The reason for the disqualification is to maintain their spousal harmony. A lawyer or attorney also cannot testify with regard to any communication made by him or her to the client, or any advice given in the course of, or with a view to, professional employment unless it is made with the consent of his or her client (Section 24 (b), Rule 130, 2019 AROE).

However, the disqualification of a lawyer from testifying will not extend to communications made by the client to the lawyer to further a crime or fraud, in breach of a duty of the lawyer or client, or if it involves a matter of common interest between two or more clients of the lawyer in an action between any of these clients (Section 24 (b), Rule 130, 2019 AROE).

Yet another disqualification extends to the physician or psychotherapist no matter how relevant the information is to the judicial proceeding. The doctor cannot, in a civil case, without the consent of the patient, be examined as to any confidential communication made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition, including alcohol or drug addiction (Section 24 (c), Rule 130, 2019 AROE).

A public officer is disqualified from testifying regarding communications made to him or her in official confidence, if the court finds that the public interest would suffer by the disclosure (Section 24 (e), Rule 130, 2019 AROE). Examples of similar disqualifications are: judicial privilege, executive privilege, and government privilege.

A father, mother, son or daughter cannot be compelled to testify against the descendant or ascendant except when such a testimony is indispensable in a crime against that person or by one parent against the other. Also, a person cannot be compelled to testify about a trade secret, unless the court directs its disclosure (Sections 25 and 26, Rule 130, 2019 AROE).

Ideally, the witness must be present in court to testify. However, there are circumstances that may prevent him or her from testifying; such as death, being abroad or with due diligence, not being found in the country. In this instance, the testimony or deposition of the witness in another proceeding may be used in the present action as long as there was an opportunity to cross-examine him or her (Section 49, Rule 130, 2019 AROE).

It is also possible that a prospective witness receives a declaration from a dying person with regard to the circumstances surrounding his probable death. If this is the case, the former can testify in court even though he had no personal knowledge of the facts he or she will testify on (Section 38, Rule 130, 2019 AROE). The reason for this rule is that a dying person is expected to tell the truth; however, this may still be disputed.

Another kind of witness is a custodian of memoranda, reports, records or data made in writing, typewriting, electronic or other similar means. This person has no knowledge of the contents of the documents but may testify since these were recorded in the regular course of business activity (Section 45, Rule 130, 2019 AROE).

The entries of official government records are prima facie evidence of the facts stated therein (Section 45, Rule 130, 2019 AROE). Hence, the public officer or person performing a duty enjoined by law to make the entries is not required to testify on those facts unless there is a question on the verity of its contents.

In the same manner, a list, register, periodical, or other compilation which is published for the use of the persons engaged in the occupation and used and relied upon by them may be presented as evidence without presenting their authors as witnesses (Section 47, Rule 130, 2019 AROE). The witness who will identify the list or compilation may be the person who procured or sourced the same.

The ability to properly pick your witnesses is an important skill, as they will paint your story in the mind of the judge. They will be the ones identifying and authenticating your documentary or object evidence in court. If you commit the mistake of presenting the wrong witness, the testimony and the evidence may be rendered useless.

The value of a competent witness is found in the determination of preponderance of evidence. “[T]he court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial” (Section 1, Rule 133, 2019 AROE).

Topics: Tranquil G.S. Salvador III , Philipppine Rules on Evidence , Amendment to the Rules on Evidence
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