Daclan, Rhea Ann R.

Section A, Wednesday, 5:30 - 9:30 PM

IMPEACEMENT OF A WITNESS

Impeachment of a witness is the process of showing that a witness is not credible

or that his testimony is not worthy of belief, i.e. casting doubt as to the credibility of the
witness or credibility of his testimony. Note that credibility of the witness is different from
credibility of testimony.

Impeachment of the witness of the adverse party

Section 11 of Rule 132 provides the manner of impeaching the witness of the
adverse party.
“SEC. 11. Impeachment of adverse party’s witness. — A witness may be
impeached by the party against whom he was called, by contradictory evidence, by
evidence that his general reputation for truth, honestly, or integrity is bad, or by
evidence that he has made at other times statements inconsistent with his present,
testimony, but not by evidence of particular wrongful acts, except that it may be shown
by the examination of the witness, or the record of the judgment, that he has been
convicted of an offense.
Generally, the witness may be impeached during his cross-examination or during
the presentation of evidence by the party. Thus, the witness of the plaintiff may be
impeached at the time he is cross-examined by the defendant and/or during the
presentation of evidence in chief by the defendant. On the other hand, the witness of
the defendant may be impeached by the plaintiff during the cross examination of said
witness and/or during the presentation of evidence during the rebuttal stage.

Under the above rule, a witness may be impeached through the following modes:

a. By contradictory evidence

The impeaching matter is raised in the cross-examination of the witness

sought to be impeached. Normally, the basis of this mode of impeachment is a
declaration made by the witness in his direct testimony. The cross-examiner’s
intention is to show to the court that there were allegations made by the witness
that do not correspond to the real facts of the case.

This mode of impeachment may also be used to contradict conclusions

made by the expert witnesses during their testimonies. Usually, the adverse party
may also call another expert to testify to a contrary conclusion. [Evidence (The
BAR Lecture Series), Willard B. Riano]

b. By evidence that his general reputation for truth, honesty or integrity is

bad
When a witness testifies, he puts his credibility at issue because the
weight of his testimony depends upon his credibility. One way to impair his
credibility is by showing a not so pleasing reputation. Hence, the prevailing rule
allows his impeachment by evidence that he has a bad general reputation.
Not every aspect of a person’s reputation may be the subject of
impeachment. Evidence of bad reputation for the purpose of impeachment
should refer only to the following specific aspects: (a) for truth; (b) for honesty; or
(c) for integrity. These are aspects of a person’s reputation that are relevant to
his credibility. He cannot be impeached for his reputation on other grounds.
Thus, it would be improper for a witness to be impeached because of his
reputation for being troublesome and abrasive.
No impeachment by evidence of bad character but bad reputation. It
should be noted that Sec. 11 does not allow impeachment by evidence of bad
character but by a bad reputation.
“Character” is made up of the things an individual actually is and does,
whereas “reputation” is what people think an individual is and what they say
about him. Hence, a person’s reputation is not necessarily his character and vice
versa. [Evidence (The BAR Lecture Series), Willard B. Riano]
Section 14. Evidence of good character of witness. — Evidence of
the good character of a witness is not admissible until such character has
been impeached.
A witness is presumed to be truthful and of good character, the party
presenting him does not have to prove he is good because he is presumed to be
one. It is only after his character has been attacked can he prove his being good.
He must be discredited before his reputation or character can be bolstered.
He cannot be impeached by the direct testimony of witnesses of the
adverse party as to particular instances of immoral acts, improper conduct, or
other evidence of misconduct.
 The person who is called by the adverse party to testify to the bad general
reputation of the witness of the opponent is called the “Impeaching witness” who
himself may also be impeached.

c. By evidence that he has made at other times statements inconsistent

with his present testimony.
Prior inconsistent statements are statements made by a witness on an
earlier occasion which contradict the statements he later made during the trial.
These inconsistent statements are admissible to impeach the credibility of the
witness making them. Impeachment by a prior inconsistent statement is the most
commonly used method because of its simplicity and the impact it makes when
properly used.
Section 13. How witness impeached by evidence of inconsistent
statements. — Before a witness can be impeached by evidence that he
has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the circumstances
of the times and places and the persons present, and he must be asked
whether he made such statements, and if so, allowed to explain them. If
the statements be in writing they must be shown to the witness before any
question is put to him concerning them.
Effectively impeaching a witness by prior inconsistent statements requires
laying the proper foundation for the impeachment. The procedure or Laying the
Foundations is outlined by section 13. To be effective the steps should follow the
following sequence:
a). Recommit: Confront the witness with his prior statements narrating the
circumstances of time, place, persons or occasion, or by showing him the prior
written statement. Get the witness to affirm he made the statements
b). Build-Up. Let the witness affirm he made the prior statements freely,
knowingly and that he stood by the accuracy and truthfulness of said statements
c). Contrast: Confront the witness by the fact that his prior statement
contradicts or deviates or is materially different from his present statement
d). Demand an explanation why he made a different statement from his
previous statements

Reason for the Procedure:

a). Fairness to the witness and avoid surprising him, so that he may
recollect the facts, and to give him the opportunity to explain the reason, nature,
 circumstances, or meaning, of his statements. Example: He might have been too
emotional then, or was improperly influenced, or wanted to avoid
embarrassment, and similar reasons.
b). To save time if he admits his prior statements

Exceptions when there is no need to lay the foundation:

a). In case of statements made by a deceased which contradicts his dying
declarations
b). If the contradictory statements are testified to by another person as an
admission

Impeachment of one’s own witness

Section 12. Party may not impeach his own witness. — Except with
respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so, declared by the court
upon adequate showing of his adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse party,
may be impeached by the party presenting him in all respects as if he had been called
by the adverse party, except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief.

As a general rule, impeachment of one’s own witness is not allowed pursuant to

Section 12. The reason is that a party calling a witness is supposed to vouch for the
truthfulness of the witness and of his testimony, which he is assumed to know before
hand, and is therefore bound by whatever the witness testifies to in court. A party is not
permitted to let the witness be believed as to facts favorable to him, but to impeach him
as to facts not favorable.

Exceptions:

If the witness presented is any of the following:

a). An unwilling witness

 b). He turns out to be a hostile witness or a treacherous witness and the
party was misled into calling him as a witness

c). An adverse party witnesses

When can a witness be considered as unwilling or hostile? There must be a

declaration of the court upon adequate showing of 3 matters: 1. adverse interest 2.
unjustified reluctance to testify or 3. planted witnesses.
You can move for the court to declare the witness as unwilling or hostile.
Effects of the declaration that witness is unwilling or hostile:
1. Leading questions can now be asked in direct examinations. Why? Because the
witness there is in all respects, a witness of the adverse party. The impeachment may
be made by the party presenting the hostile or unwilling witness in all respects as if he
had been called by the adverse party.
2. The hostile witness may also be impeached and cross examined by the adverse
party, however, because technically speaking that witness is the witness of the adverse
party. The cross examination must only be on the subject matter of the examination in
chief. And that is an application of the american rule.
3. Cross examination by his own lawyer will be governed by the rules on direct
examination, which means that even in cross examination, a leading question can be
asked.

CASE / LATEST JURISPRUDENCE:

G.R. No. 214054, Aug. 5, 2015;

NG MENG TAM, Petitioner, vs. CHINA BANKING CORPORATION, Respondent.

This case stemmed from a collection suit filed by China Banking Corporation (China
Bank) against Ever Electrical Manufacturing Company Inc. (Ever), the heirs of Go Tong,
Vicente Go, George Go and petitioner Ng Meng Tam.
China Bank alleged that it granted Ever a loan. The loan was allegedly backed by two
surety agreements executed by Vicente, George and petitioner in its favor. When Ever
defaulted in its payment, China Bank sent demand letters collectively addressed to
George, Vicente and petitioner. The demands were unanswered. China Bank filed the
complaint for collection.
In his Answer, petitioner alleged that the surety agreements were null and void since
these were executed before the loan was granted. Petitioner posited that the surety
agreements were contracts of adhesion to be construed against the entity which drafted
the same. Petitioner also alleged that he did not receive any demand letter.
Petitioner served interrogatories to parties pursuant to Sections 111 and 6,12 Rule 25 of
the Rules of Court to China Bank and required Mr. George C. Yap, Account Officer of
the Account Management Group, to answer.
George Yap executed his answers to interrogatories to parties.
Petitioner moved for the hearing of his affirmative defenses. Because he found Yap’s
answers to the interrogatories to parties evasive and not responsive, petitioner applied
for the issuance of a subpoena duces tecum and ad testificandum against George Yap
pursuant to Section 6,14 Rule 25 of the Revised Rules of Court.
When the case was called for the presentation of George Yap as a witness, China Bank
objected citing Section 5 of the JAR. China Bank said that Yap cannot be compelled to
testify in court because petitioner did not obtain and present George Yap’s judicial
affidavit. The RTC required the parties to submit their motions on the issue of whether
the preparation of a judicial affidavit by George Yap as an adverse or hostile witness is
an exception to the judicial affidavit rule.
Petitioner contended that Section 5 does not apply to Yap because it specifically
excludes adverse party witnesses and hostile witnesses from its application. Petitioner
insists that Yap needed to be called to the stand so that he may be qualified as a hostile
witness pursuant to the Rules of Court. China Bank, on the other hand, stated that
petitioner’s characterization of Yap’s answers to the interrogatories to parties as
ambiguous and evasive is a declaration of what type of witness Yap is. It theorizes that
the interrogatories to parties answered by Yap serve as the judicial affidavit and there is
no need for Yap to be qualified as a hostile witness.
The RTC ruled that Section 5 did not apply to Yap since he was an adverse witness and
he did not unjustifiably decline to execute a judicial affidavit.
The RTC stressed that Section 5 of the JAR required the requested witness’ refusal to
be unjustifiable. It stated: the [JAR] requires that the refusal must be unjustifiable and
without just cause. It must be pointed out that [China Bank]’s previous motions to quash
the subpoena was grounded on the claim that having already submitted to this court his
sworn written interrogatories, his being compelled to testify would be unreasonable,
oppressive and pure harassment. Thus, witness’ refusal to testify cannot be considered
unjustifiable since he raised valid grounds.
Issues:
1. Whether or not RTC committed an error of law when it interpreted sec. 5 of the JAR?
2. Whether or not RTC committed an error of law when it effectively disregarded the
relevant rules on modes of discovery which govern the presentation of adverse
witnesses.

Held:
1. Under Section 10,25 parties are to be penalized if they do not conform to the
provisions of the JAR. Parties are however allowed to resort to the application of a
subpoena pursuant to Rule 21 of the Rules of Court in Section 5 of the JAR in certain
situations. Section 5 provides:
Sec. 5. Subpoena. – If the government employee or official, or there quested witness,
who is neither the witness of the adverse party nor a hostile witness, unjustifiably
declines to execute a judicial affidavit or refuses without just cause to make the relevant
books, documents, or other things under his control available for copying,
authentication, and eventual production in court, the requesting party may avail himself
of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a subpoena to the witness in this
case shall be the same as when taking his deposition except that the taking of a judicial
affidavit shal1 be understood to be ex parte.
While we agree with the RTC that Section 5 has no application to Yap as he was
presented as a hostile witness we cannot agree that there is need for a finding that
witness unjustifiably refused to execute a judicial affidavit. Section 5 of the JAR
contemplates a situation where there is a (a) government employee or official or (b)
requested witness who is not the (1) adverse party’s witness nor (2) a hostile witness. If
this person either (a) unjustifiably declines to execute a judicial affidavit or (b) refuses
without just cause to make the relevant documents available to the other party and its
presentation to court, Section 5 allows the requesting party to avail of issuance of
subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. Thus,
adverse party witnesses and hostile witnesses being excluded they are not covered by
Section 5. Expressio unius est exclusionalterius: the express mention of one person,
thing, or consequence implies the exclusion of all others.
Here, Yap is a requested witness who is the adverse party’s witness. Regardless of
whether he unjustifiably declines to execute a judicial affidavit or refuses without just
cause to present the documents, Section 5 cannot be made to apply to him for the
reason that he is included in a group of individuals expressly exempt from the
provision’s application.
2. The JAR being silent on this point, we turn to the provisions governing the rules on
evidence covering hostile witnesses specially Section 12, Rule 132 of the Rules of
Court which provides:
SEC. 12. Party may not impeach his own witness. – Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not
allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the court
upon adequate showing of his adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse party,
may be impeached by the party presenting him in all respects as if he had been called
by the adverse party, except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief.
Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the
party presenting the adverse party witness must comply with Section 6, Rule 25 of the
Rules of Court which provides:
SEC. 6. Effect of failure to serve written interrogatories. – Unless thereafter allowed by
the court for good cause shown and to prevent a failure of justice, a party not served
with written interrogatories may not
be compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal.
In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that “in civil cases,
the procedure of calling the adverse party to the witness stand is not allowed, unless
written interrogatories are first served upon the latter.”
In this case, parties, with the approval of the Court, furnished and answered
interrogatories to parties pursuant to Rule 25 of the Rules of Court. They therefore
complied with Section 6 of Rule 25 of the Rules of Court. Before the present
controversy arose, the RTC had already issued subpoenas for Yap to testify and
produce documents. He was called to the witness stand when China Bank interposed
its objection for non-compliance with Section 5 of the JAR. Having established that Yap,
as an adverse party witness, is not within Section 5 of the JAR’s scope, the rules in
presentation of adverse party witnesses as provided for under the Rules of Court shall
apply. In keeping with this Court's decision in Afulugencia, there is no reason for the
RTC not to proceed with the presentation of Yap as a witness.
In sum, Section 5 of the JAR expressly excludes from its application adverse party and
hostile witnesses. For the presentation of these types of witnesses, the provisions on
the Rules of Court under the Revised Rules of Evidence and all other correlative rules
including the modes of deposition and discovery rules shall apply.
CONCLUSION:
Impeachment of a witness is the process of challenging or calling into question
the credibility or intention of an individual testifying in court.
There are three ways on how to impeach a witness:
(a) By contradictory evidence
(b) By evidence that his general reputation for truth, honesty or integrity is bad
(c) By evidence that he has made at other times statements inconsistent with his
present testimony.
General rule to remember here is impeachment of a witness can be done only by
the opponent. It cannot be done by a party producing the witness or the proponent,
because again of section 12 that a party cannot impeach his own witness.
Except if the witness presented is any of the following: (a) an unwilling witness,
(b) he turns out to be a hostile witness or a treacherous witness and the party was
misled into calling him as a witness, (c) an adverse party witness.
What would be the occasion when you feel the need to impeach witness
credibility? If the testimony of your own witness is not favorable to you.
Why is it that you’re allowed to impeach an unwilling /hostile witness or the
adverse party’s witness? Because you do not vouch to what he is going to say. You are
of course to expect that what the unwilling/hostile witness of adverse party’s witness to
say is something that is against your cause of action or your defense. It stands to
reason that the rule of a party not being allowed to impeach his own witness does not
apply to an unwilling/hostile witness or adverse party’s witness.