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NOTES ON “DIOKNO ON TRIAL”

(Techniques and Ideals of the Filipino Lawyer)


The Complete Guide to Handling Cases in Court

Lecture Outline

A. Presentation of Evidence .................................................................... 4


a.1. why present evidence
a.2. task of a lawyer
a.3. functionally
B. Three Things to Win a Case ............................................................... 4
b.1. good case
b.2. good lawyer
b.c. good judge
C. Qualities of a Good Lawyer ................................................................ 4
c.1. integrity/honesty
c.2. courage
D. Effective Lawyer to Present Evidence ............................................... 5
d.1. get evidence
d.2. get a retainer record
d.3. make a witness guide
d.4. make trial evaluation
d.5. be meticulous, be prepared
DD. Know the Rules on Evidence
dd.1. make your own trial manual
dd.2. always be observant in the courtroom
DD.A. Preserve your record on appeal
DD.B. Keep adverse party's evidence out
dd.b.1. proper objections
dd.b.2. motion to strike out
dd.b.3. when I should not cross examine
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Notes on “Diokno on Trial”

a) has the testimony of the witness bust my case at


all?
b) can I demolish that testimony by other
incontrovertible evidence?
c) is he a truthful witness?
E. Specific Tasks of a Lawyer ................................................................. 7
e.1. be able to offer admissible evidence
e.2. prove every disputed element of client's cause of action
e.3. prove theory of case
e.4. prove inherently right for the judge to decide the case in
client's favor
- direct examination
e.5. be able to keep out opponent's evidence
- effective cross-examination
e.6. strengthen and rehabilitate any part of his case that
opponent succeeded in weakening
- re-direct examination
e.7. preserve offer of proof
e.8. prepare a persuasive memorandum
e.9. summary:
1. conduct direct exam and present exhibits
2. make motions and motions to strike out
3. cross-exam; impeach and rebutt
4. re-direct and corroborate
5. make offer of proof
6. submit persuasive memoranda
F. Qualities of a Persuasive Lawyer ...................................................... 9
f.1. earn the respect of the court
f.2. judge must recognize lawyer as a fighter
f.3. judge must respect lawyer's ability, knowledge of the law,
but also judgement
f.4. judge respects lawyer's integrity

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G. Skills of a Trial Lawyer ...................................................................... 9


g.1. ability to listen to what is being said and to understand.
patience to listen.
g.2. must have the skill to speak clearly, distinctly, and
understandably.
g.3. able to think on his feet. make decisions quickly.
H. Plan the Trial in Advance .................................................................. 9
h.1. know all the things you have to prove
h.2. how and what order you will prove
h.3. as the case progress, to know what was/were proven and
what still to prove
h.4. before resting case, to be sure that everything was proved
I. Things to Do...................................................................................... 10
J. After the Mechanics, Lay Down the Priorities ................................ 10
j.1. plan order of proof. start with a strong witness that can
give a general picture of the case
j.2. weak witness, to be presented in the middle
j.3. right after him, present somebody who can corroborate
this witness on other points
j.4. defendant: create a favorable impression on the judge
j.5. hit the judge quickly with your 1st witness to overcome
the psychological effect of the plaintiff's witness
K. Tips in Presenting a Witness ........................................................... 12
k.1. whatever words used during the interview, use the same
words in court. don’t surprise the witness by changing
words
k.2. don’t change your language
k.3. never ask a witness any exhibit you never discussed
k.4. if witness going to identify exhibit, explain ritual
k.5. if possible, get stipulations on your exhibits
k.6. final tip: if you want to become a trial lawyer, try cases.
you will only learn by doing it

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L. Seven Problems in the Presentation of Evidence ............................ 13


l.1. know the facts you have to prove
l.2. review; weight and sufficiency of evidence; burden of proof
l.3. determine which facts are deemed established without
need of proof
l.4. determine who must establish the facts that have to be
proved
l.5. know the degree of proof required
l.6. determine the admissibility of available evidence
1. best evidence rule
2. parole evidence rule
3. rule on hearsay and exceptions thereto
4. problems of admissions, opinion rule, character
evidence and proof of similar acts
5. dying declaration
6. testimonial qualifications
l.7. obtain and preserve the evidence for trial
l.8. present and offer evidence effectively and preserve
excluded evidence for trial

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Presentation of Evidence
 The first question to be asked is why are we presenting evidence?
 On what is our task as trial lawyers?
 To let justice triumph.
 Functionally, our task as trial lawyers is to convince the court
that our client is correct.
 In short, we are glorified salesman seeing our product.
 Don Ramon Diokno, Sen. Jose W. Diokno’s father. His client’s
would ask “mananalo ba tayo?” (Are we going to win the case?)

Three Things to Win a Case


1st GOOD CASE
2nd GOOD LAWYER
Show to the court that you have the law and justice on your side.
3rd GOOD JUDGE
 Who is ready to follow the law and justice.
 “I guarantee you the first two, I cannot guarantee the 3rd"

Qualities of a Good Lawyer


1st IMPORTANT: Integrity or Honesty, not only to your client, not
only to the courts, but most importantly, honesty to yourself.
 There is one lesson that psychology teaches us and it is that if
you repeat a lie often enough you got to believe it yourself.
 And when you begin to believe lies, you are deceiving not
somebody else but yourself.

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 The lawyer QUINTILLAN in 88 AD said: “the advocate must


be skilled in speaking but above all he must possess the
quality which is best and the way nature of things the greatest
and most important – that is, he must be a good man!!”
 He further said, those of us in the practice “There is no
greatest benefit that we can confer our clients than this, that
we should not cheat by giving them empty boast of success.”
In short, an honest lawyer tells his client that his case is no
good when he thinks that it is no good.
 The first requisite for an effective presentation of evidence is
integrity on the part of the lawyer.
 Judges have often told “him” of some of our brethren or the
bar who they will not believe even if they come to court with
30 witnesses.
2nd The 2nd important quality of a lawyer is Courage.
 A lawyer with courage will persuade a judge much more easily
than a lawyer without courage.
 When the judge knows you will fight him all the way, as high
as necessary, you can be sure that the judge will study your
cases very well and make sure that the judgements, if they
are going to be against you, are well studied.
 The practical reason why we have to have courage – our job is
to prosecute – to fight.

Effective Lawyer to Present Evidence


A. First, get the evidence
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 You cannot present an evidence that you have not gotten


 Practical example: not connected with law.
- All of you are familiar with Japanese watches. They are
inexpensive. They are accurate.
- Do you know how they become good? The manufacturers sent
their technicians to Switzerland. They bought an old,
complete Omega watch factory. They were trained by Omega
people. Then they transplanted the whole factory to Japan.
After they transplanted the whole factory to Japan, they made
improvements on the machinery and on the working methods.
And now you have Japanese watches outselling Swiss
watches throughout Southeast Asia.
- In the same way, lawyers learn from watching others,
imitating them or improving on them.
1. Make a Retainer Record
- To avoid mistakes… a client before, now you are suing her.
2. Use a Witness Guide
- See: Doikno on Trial, page 13.
- Witness: Middle-aged cigarette vendor living in a squatter
area.
3. Make a Trial Evaluation
4. Be Meticulous, Be Prepared
B. Know the Rules on Evidence
1. Make your own trial manual.
2. Always be observant in the courtroom.
C. Preserve your record for appeal
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Q1: Suppose your evidence won’t go in because the judge won’t


allow it in?
A1: Then, you make an offer of proof. If your exhibits have been
rejected, you must insist that they be attached to the record
so that they may be brought up on appeal.
Q2: Suppose it is not an exhibit but a testimony?
A2: Tell the court your witness would have testified on this fact
on his own knowledge. In saying what you expected him to
testify, make sure that you use the language that indicates
that the witness has personal knowledge of the facts or that
he would testify to facts of his own knowledge and are not
hearsay or opinion evidence.
D. Keep the adverse party’s evidence out
 How to use the proper objections
 Rules requires us to be specific
 Irrelevant, impertinent, immaterial are general objections and
unless the question is too general, general objections are not to
be used
Q: When I should not cross-examine?
A: 1) Has the testimony of this witness hurt my case at all:
2) Can I demolish that testimony by other incontrovertible
evidence?
3) Is he a truthful witness?

Specific Tasks of a Lawyer


 Technique and ideals must go hand-in-hand.
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 It is the means to an end.


 We have to convince the judge that a right and just judgement be
rendered for our clients. In short, it is not enough as the lawbook
tells you to have a theory of your case. You must also have an image
of your case – something in your case that appeals to the reason and
sense of justice of the judge, something that would make him say
“Indeed, this person is right and the law isn’t that way, maybe I can
interpret it so that it will be that way.”

The job of a trial lawyer can be broken into three:


First, he must be able to offer admissible evidence and must
do so in the right order and the right time for maximum persuasive
effect. He must prove every disputed element of his client’s cause of
action. He must prove the theory of his case and then he must do
more, he must prove that it is inherently right for the judge to decide
the case in his client’s favor. He must see that is done by effective
direct examination and proper introduction of exhibits.
Second, he must be able to keep out the opponent’s evidence.
He does this by timely objections and motions to strike out.
Third, he must be able to expose the weaknesses of his
opponent’s case. He does this be effective cross-examination by
impeachment and by rebuttal. Then he must strengthen and
rehabilitate any part of his case that his opponent has succeeded in
weakening. The lawyer does this by re-direct examination and
presenting corroborating evidence.
Finally, he must preserve the record so that if the trial judge
excludes admissible evidence, then he must take an appropriate offer
of proof. And of course, at the end of the trial, he must depict the
stance of the evidence and law into the stronger and most persuasive
picture of his client’s case. He does this normally in this jurisdiction
not by oral argument but by written memoranda.
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IMPORTANT: Briefly, the specific tasks of a lawyer: 1.


Conduct direct examination and present exhibits; 2. Make objections
and motions to strike out; 3. Cross-examine, impeach and rebut; 4.
Re-direct and corroborate; 5. Make offer of proof; and 6. Submit
persuasive memoranda.

Qualities of a Persuasive Lawyer


The most important is you to earn the respect of the court.
First, the judge recognizes you as a fighter. If the judge knows
that you are not going to fight, he will ride over you and over your case.
Second, the judge respects your ability as a lawyer, not only
your knowledge of the law but also your judgement.
Third, the judge respects your integrity.

Skills of a Trial Lawyer


First, the most important skill in the one that I have found
most lacking especially among the younger members of the bar is the
ability to listen to what is being said and to understand.
Patience to listen.
Second, must have the skill to speak clearly distinctly and
understandably and if possible avoid talking too much.
Third, be able to think on his feet. Make decisions quickly.
Sometimes no matter how well repaired are you will be caught by
surprise in court.

Plan the Trial in Advance


 Essential trial technique to plan trial in advance.
 To know all the things you have to prove.
 How and what order u will prove.

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 And as the case progresses, to know what you have proven and what
you still have to prove.
 And before you rest your case to be sure that you have proved
everything that you wanted to prove.

* You may not know how to cross examine and make objections
but if you planned your case then you have a much better chance than
a brilliant cross examiner who has gone to court without a plan.

Things to Do
A. Control
B. Pleadings
C. Facts
D. Law notes
E. Motions
F. Pretrial
G. Plaintiff’s case
H. Plaintiff’s exhibits
I. Defendant’s case
J. Defendant’s exhibits
K. Trial
L. Rebuttal
M. Arguments or Trial memorandum
N. Evaluation.

After the Mechanics, Lay Down the Priorities


 Plan your order of proof. Start with the strong witness.

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 Strong witness is a person who couldn't stand a searching probing


cross examination and can give the court a general picture of the
case.
 Suppose a weak witness has to be presented what will you do or
deal with such weakness
- Put him in the middle.
- Right after him put/present somebody who can corroborate
this weakness on other points.
 What about the defendant? Create a favorable impression on the
judge.
 What is important to hit the church quickly with your first witness
to overcome the psychological effects of the plaintiff's witnesses
 One more factor about the sentence case very often plaintiffs
witnesses testify that the defendant did or said such and such a
thing very many young lawyers are tempted to have their clients
denied it right away.
 The better practice would be this: call the defendant: have him give
his testimony in narrative form: then at the end of the narrative,
before you turn over him for cross-examination, ask him a series of
questions like:
Q1: The witness so and so that you have said such and such is true
how would you respond to this
A1: I did not say that sir
Q2: Alright what is it that you really said or did

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- Client will now say or explain what you did. this is one way
of being able to get the same story twice before the court
without it's being objectionable.
 Know your judge
 Not personally to influence you will get favorable judgment
 One morning go quietly and inconspicuously to his courtroom and
sit at the back and watch how he or she tries a case and you will
learn a lot.
 Another way, ask your compañeros/ras who had appeared for him.
(Mayabang ba? Bastos? Matapang? etc. Stricto? etc.)
 Go to his clerk of court or stenographers and ask who is he or she

Tips in Presenting a Witness


NOTE: Whatever words you used in questioning your witness
in your office interview, use those words in court. Don't surprise the
witness by changing words he may not understand. Very few lawyers
follow this.
First, don’t change your language dent change the wordings of
your questions from the office interview to the court
Second, don't ever ask any witness about any exhibit you have
not discussed with him at your office
Third, if your witness is going to identify and exhibit explain
to your witness all these big words that you have to go through in court
to authenticate and exhibit even if it is a ritual that has become
practically meaningless
Fourth, whenever possible, get admissions or stipulations on
your exhibits to eliminate the need for this ritual identification in court
but it is last deep is not an inflexible rule there May be occasions when
you want to keep your exhibit to yourself.
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The occasions:
First, when should you ask for stipulations? On direct
examination and I am sure the adverse party knows my clan
has those exhibits and I will present them for stipulation. I lose
nothing
But if my documents contain matters that I will use on
cross-examination or if I think the adverse party can prepare a
defense, then I keep my documents until the last minute
NOTE: On July 13 2014, the Supreme Court issued AO No. 03-
1-9-SC, effective August 2004 which states that:

“pretrial in civil cases…”

“2… The parties shall submit at least three (3) days


before the pretrial, pre-trial briefs containing the following:

(d) The documents or exhibits to be presented stating


the purpose thereof. (No evidence shall be allowed to be
presented or offered during the trial in support of a part is
evidence in chief other than those that had been earlier
identified and pre mark during the pretrial except if allowed
by the court for good cause shown.)

Seven Problems in the Presentation of Evidence


1. Know the facts you have to prove
(First, what facts must I establish as a lawyer for the plaintiff
or for the defendant if my cause of action or my defense is to succeed.)
First, go to the requirements of substantive law
See: Amendras case – charge against him: 1) he interrupted;
2) by unseemly conduct; and 3) the holding of a canvass.
For the prosecution to establish its case, it has to show: 1st)
there was a canvass going on – to establish this, they must establish

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that the Board of Canvassers was in session; 2nd) establish that the
canvass was interrupted; and 3rd) the cause of interruption was
unseemly conduct on the part of Sen. Almendras.
- In order to determine the facts, go to substantive law.
- In addition, review rules of court on the weight and sufficiency
of evidence
- Burden of proof
- Presumptions
- All of these indicate the facts that must be established
2. Determine which facts are deemed established without need
of proof
(Second, which of these facts - or evidentiary facts tending to prove
them – are deemed proved without my having to present evidence.)
- Here come with the problem of judicial notice and judicial
admission.
- In the matter of judicial admissions, one problem that crop up,
what happens to an admission when the pleading has been
amended.
- The threshold issue here is whether or not the amendment was
accepted by the court
- If the amendment is accepted or admitted, it supersedes the
earlier pleading
- This means that the admission contained in the earlier pleading
ceases to be a judicial admission and becomes an extrajudicial
admission. An extrajudicial admission, it must be established by

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the party seeking to use it as evidence against the other party.


(Javellana vs. D.O. Plaza Enterprises, Inc. [32 SCRA 261])
- Having been amended, the original complaint lot its character as
a judicial admission which would have not required proof, and
became merely an extrajudicial admission of which, as evidence,
requires formal offer.
3. Determine who must establish the facts that have to be
proved
(Third, who must establish the facts that remain to be proved.)
- More accurate in criminal cases. For instance, possession of a
prohibited drug is penalized under the RPC or the Dangerous
Drugs Act except upon prescription of a physician.
- Now, is it the burden of the prosecution or is it the burden of the
defense to prove that there is a prescription by a physician?
4. Know the degree of proof required
(What degree of proof is needed for the remaining facts?)
- Review your rules of court on the weight and sufficiency of
evidence.
- The issues here may involve the quantity and quality of one’s
witnesses, and the kind of evidence necessary in particular
cases.
- For instance, treason, you need at least 2 witnesses to the overt
act or a confession of the accused in open court.
- An extrajudicial confession alone, without 2 witnesses to the
same overt act will not be enough.

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- If you have an extrajudicial confession in an ordinary criminal


action, you will still need proof of corpus delicti, independent of
the extrajudicial confession. See: Rule 133.
5. Determine the admissibility of available evidence
(What available evidence is admissible to prove these facts?)
- We come up with the basic problems of evidence.
- All evidence boils down actually to either a witness or object.
- Object may be a document or thing
- We cannot have any evidence unless we have a witness or an
object and unless this witness or object is presented in court.
- And once we have this, it is much easier to understand these
rules on relevance, admission, and the like.
- THE MEANING OF RELEVANCE:
- What is the meaning of relevancy.
- Anything relevant if it tends to establish a fact in issue, or
a fact from which a fact in issue may be inferred.
- Relevance is a logical or transactional relationship
- Ex. A person is shot with .38 caliber revolver.
- Evidently, that is a relevant fact because it intends to
establish a fact that the accused, being an owner of a .38
cal. Revolver, is possibly the person who shot the deceased.
- So, relevance is simply a logical or transactional
relationship
- RULE: anything that is relevant is admissible when it is
not excluded by the rules.
- THE RULES OF EXCLUSION:
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- First, most common is the best evidence rule. It applies only


to documents.
- Second, the next, the parol evidence rule, which also applies
to documents. It says “when the terms of an agreement have
been reduced to writing, no evidence of the terms thereof can
be presented other than the writing itself.”
- Third, the rule on hearsay and exceptions thereto: dying
declaration, declaration against interest, pedigree, family
reputation, common reputation, res gestae, entries in the
course of business, entries in official records, commercial lists,
learned treatises, and testimony at former trial.
- Fourth, the problem of admissions, opinion rule, character
evidence, and proof of similar acts.
- Basic rules of evidence
- In connection with admissions and confessions, normally a
person’s statement is admissible only against him.
- The statement of somebody else made outside the courtroom
is not admissible against this person.
- Ex. 6 persons charged with a crime, 3 have been caught and
tried. Before the trial is over, the 4th defendant is also caught
and he gives an extrajudicial statement admitting his guilt
implicating the 3 other defendants.
- Now quite clearly, the extrajudicial statement of the 4th
accused is not admissible in evidence against hi co-accused
who were caught earlier.

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- This is simply under our constitution (Art. III, Sec. 14) you
are entitled to confront and to cross-examine the witnesses
against you and since this other accused was not presented in
court as a witness, his extrajudicial statement then would
only be admissible as against him, the 4th accused, but not
against the 3 accused.
- THE DYING DECLARATION: EASY TO FABRICATE, HARD
TO DISPROVE.
- With respect to hearsay rule, the major problem to be very
careful about which we will always encounter as defense
lawyers in fabricated cases against our clients is dying
declaration.
- Ex. The case of “no brains left”
- The the PC in a preliminary investigation presented a
dying declaration, signed by the PC Capt. And attested by
a PC Lt.
- First, look at the wounds
- One entered and came out at the back of the brain.
Practically no brains left.
- Ask the doctor who performed the autopsy, “How long after
these injuries had been inflicted could this man have
talked?”
- Dr. said, “he could have not talked, not even for a few
seconds.” Considering that the shots were fired
successively, the moment that one of the bullets got in, the

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brain was already blown off so he had no more capacity to


talk.
- Dying declaration could be easily fabricated. You only need
one person who is supposed to have talked to the deceased at
the moment before his death. Sometimes, the prosecution
makes a mistake and forgets to prove “consciousness of
impending death” so you think you can get away with it and
say “I object your honor.” It can still be admitted as part of res
gestae.
- The only advice: “try to trace the actions of the deceased and
the persons who supposedly took the dying declaration. If for
instance, the dying declaration was taken at the hospital then
you have the opportunity, because you can question the
nurses, the attendants, the doctors, and they can tell you if
truthfully there was a dying declaration or not. Its okay, still
you have a chance to disprove it.
- But what happens in many cases, especially in the rural areas
is this: the accused suffers a wound; then the policeman came
and says: “before he died, I was able to talk to him and this is
what he told me.”
- You have no doctor, nobody else is around; only the policeman
and the deceased. So it becomes a question of credibility.
- In those cases, the only advice I can give is this: “present a
solid evidence on other points as you can and try to weaken
the testimony of the policeman by showing bias, prejudice,
relationship or monetary considerations.”
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- Ex. A witness came from a very low-income group. When


he testified, this was after xmas, he was wearing a gold
watch and la coste shirt at SM and a new brown florsheim
shoes.
- When counsel noticed these, he asked him where did he get
those. He admitted it was a xmas gift from the parents of
the deceased.
- And when you get admissions like those, and sometimes you
can if you can catch them by surprise, then you have, to a
certain extent, been able to minimize the damage that
fabricated evidence can cause.
- TESTIMONIAL QUALIFICATIONS
- Except in those cases where there is an overriding public
interest, that is in the matter of privileged relationship or
privileged communications, any person who has the capacity
to perceive and to make known his perceptions regardless of
age or mental condition, can be a witness.
- The question often asked: “can a person who is insane be a
witness?”
- The answer is yes, as long as he is testifying during one of his
lucid moments. This is a matter unlikely occurrence but it can
happen. Remember that the definition of legal insanity and
medical insanity are very different.
- As far as law is concerned, a person need not be 100% sane. It
is enough that he understands what is happening around him
and he can communicate that.
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- That he might believe in ghosts and spirits, these are signs


that might indicate medical insanity but would not affect the
testimonial qualifications of a witness. However, they can
affect the weight to be given to his testimony.
- PRIVILEGED RELATIONSHIP
- As a rule for excluding witnesses
- Three cases of privileged relationship
1. Marital relationship
No husband can testify against his wife without her
consent, or vice versa, except in a civil case by one against
the other.
2. Parental and filial relationship
No descendant can be complied to testify against an
ascendant
3. Dead man’s statue
Meaning, in monetary obligations or claim against a
deceased person or a transaction having been taken during
the life of the deceased person, the claimant cannot testify
to ay matter of fact that took place during the life of the
deceased person.
- PRIVILEGED COMMUNICATIONS come down to marital
confidences which will apply even when the marriage is
terminated. Neither the husband nor wife can be questioned as
to what was said to him or her by the other during their
marriage. This holds true even after the marriage is ended.
6. Obtain and observe the evidence for trial
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(Sixth, how do I obtain the evidence and preserve it for use at the
trial?)
Judicial and extrajudicial methods of getting and preserving
evidence.
- JUDICIAL METHOD
a) Discovery and depositions under Rules 23 and 29
b) Perpetuation of testimony under Rule 24 and Sections 12, 13
and 15 of Rule 119
c) Subpoenas and subpoenas duces tecum under Rule 21
d) Search and seizure or search warrants under Rule 126
- Importance of discovery and depositions
- Discovery and depositions: a case is already filed in court
- Perpetuation of testimony: a case is not yet filed in court, but
expected to be filed
- Depositions are important but are expensive. Hire a
stenographer and pay a notary public
- Admissions, do not have to spend much
- If you have a request for admission which is denied by the
adverse party and it can be proven that their denial was
unfounded. You are entitled to payment of costs and reasonable
expenses in proving that evidence.
- Illustration: how important deposition was:
- She was presenting the widow of a general partnership
- It was a partnership of 4 brothers and 1 of them died. She was
representing the widow
- This was shortly after the war
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Atty. N.E. Villanueva
Notes on “Diokno on Trial”

- The articles of co partnership and books of account


disappeared
- The important part there was the brothers received war
damage amounting to a very close to a million pesos
- The brothers of X, widow’s husband, was only giving the
widow about P100,000.00
- Important to locate the records of the partnership and what
was located was only the income tax returns of the
partnership of the last year before the occupation
- However, the ITR does not contain a balance sheet. It did not
say the capital of each partner. It contained only the
distribution of the profits among the partners and it was
important to establish that the profits were being distributed
according to capital participation
- Because if it was true and his client’s husband had the highest
percentage of profits in the ITR’s, he would therefore have the
highest participation in the capital and therefore the biggest
chare of the million pesos
- Without the articles of incorporation, without anything else,
and the wife did nit know anything about the partnership,
because she was not a member, he had only to depend on a
partner. And all of them were hostile.
- Worried, that if he will bring this out directly, they would
come up with some excuse and say, “since he was the
manager, we give him a bigger share in the profits, but our

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Atty. N.E. Villanueva
Notes on “Diokno on Trial”

capital is the same.” Did not know how to go about this, but
tried his luck.
- Took the deposition of one of the partners, the least intelligent
among them. In the middle of the taking of the deposition, he
was asked the question very innocently: “of course, you were
dividing your profits in accordance with the capital?”
- Without thinking very much, he answered, “oh yes, we divided
the profits according to capital.”
- Gotten what he wanted, still continued asking questions, so
that his lawyer would not realize what he was after. And the
rest “garbage”
- Come the date of trial, presented the deposition and could see
the smile on his opponent’s face.
- After presenting it, presented the ITR, saw opponent’s smile
suddenly disappeared because he realized that he got what he
wanted in the deposition.
- He has now the basis to prove his point because his next
witness was a CPA, who testified, according to his
computation based on the percentage of profit, my client’s
husband owned 69% of the partnership capital. So on that
basis, his client having no children, approximately 55% belong
to her as the surviving spouse.
- EXAMINE THE DOCUMENTS CAREFULLY INCLUDING
THOSE FROM CLIENT
- Most of the come from clients

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Atty. N.E. Villanueva
Notes on “Diokno on Trial”

- Contracts, letters, documents you depend on your client to


furnish you with the necessary data
- Caution: never accept your client’s documents without
submitting them to a very thorough examination
- Ex. Acknowledgement of a natural child:
 The woman gave a letter admitting the parentage of the
child
 But there are other documents signed by the man and
when compared, the letter turned out to be fake.
- THINKING FOR CROSS-EXAMINATION
- Ex. Rape: one of the most important factors that is considered
by the courts, especially when the girl is young and still living
with the parents is when she was free, she did not report the
rape to her parents. Why? The normal reaction of a girl who
has been raped the moment she is free and she sees her
mother is to cry and say what happened. So if she did not,
then may be the rape was with consent.
- RULE: if it is possible in your first or two questions on cross, put
the witness off-balance
- HOW:
- You may know something about the witness that can affect
his credibility that he does not know you know.
- Ask questions that will bring out some inconsistencies with
his answers

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Atty. N.E. Villanueva
Notes on “Diokno on Trial”

- But some judges will tell you that cross-examination is


overrated. It is only in exceptional cases that a case is won or loss
by cross-examination. 95% of cases are won or lost by the
strength of the direct evidence and the ability to present it in a
way that it convinces the judge.
- This means you have to know the judge, not in the improper way,
but you have to know how the judge’s mind works, how he
reasons.
- 1st impression judges
- 2nd, last impression judges.
7. Present and offer your evidence effectively and preserve
excluded evidence for appeal
(How do I offer and present evidence at the trial?)

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