Diokno - Jose Manuel - Advanced Cross-Examination

ADVANCED
CROSS-EXAMINATION
Chel Diokno
Of all trial skills, cross-examination is
the most challenging and the hardest to master.
• Good cross-examiners—
• Know exactly what they want and need to elicit from the witness.
• Constantly look for the “kinks” in the witness’s armor.
• Think quickly on their feet.
• Listen well.
• Have excellent timing.
• Know how to to control the witness (who has probably been prepared to resist,
counter, parry and evade the cross-examiner’s questions).
• Frame their questions in ways that tend to elicit the desired answers.
• Understand the psychology of human behavior.
• Have mastered the rules on evidence and procedure.
Jose M. I. Diokno - All rights reserved 2
It’s all about preparation, preparation, preparation.
10 hours’ prep for every hour in court.
CROSS- Should include:

EXAMINATION • Your questions (including the exact formulation of
crucial questions);
• Your demeanor;
• Your control of the witness;
• Your minimum and maximum objectives; and
• The scope and possible sequence of your
questioning,

• Cases that go to trial are won in the
office – not in the courtroom.
• There are two sides to every lawsuit.

A lawyer who knows his or her own
case only is half prepared.
Preparation for Trial
Jose W. Diokno • A case important enough to try is

important enough to prepare
thoroughly.
• A case can be over-tried but never

over-prepared.

Jose M. I. Diokno - All rights reserved
• Both law and facts are important.
• Both may need to be investigated

concurrently, but the lawyer comes
to the case with a background of
The importance legal knowledge.
of ascertaining
the facts.
• The lawyer needs a legal theory to
guide investigation of the facts.
5
• However, as new facts develop, legal
theory may require modification.
• Lawsuits have their origins in transactions or
The facts are occurrences in the past.
frequently more • What really happened may never be known.
difficult to ascertain • Even if we know what actually happened, we
than the law. may not be able to prove it in court.
• One can only reconstruct by assembling
pertinent evidence.
What do I have to prove?
My theory and image of the case.
Ultimate facts and evidentiary facts
It starts with planning

your case
What’s my theme or tagline

for this case?

• Cause of action or defense.
• Premeditated murder.
Theory of the case • Accused insane when he killed Vic.
• Accused acted in self-defense.
• No PBRD.
• Illegal search – evidence inadmissible.

Logic is only one facet of
advocacy.
The lawyer must create in the

Image of the case mind of the judge the desire to
decide in favor of his/her client.
By highlighting relevant Jose

facts that create W.
sympathy or interest in
your client. Diokno
Moses Laskey, The Essentials Of Successful Trial Advocacy,
The Practical Lawyer, Vol. 6, No. 3, Pp. 89-94
• “The first task of the trial lawyer…is to make the judge want to decide
in [your] favor.
• The second is to give [the judge] the rational basis on which to do so.
• The former without the latter is a fraud; the latter without the former is
likely to be a failure.”

• “…[T]he successful trial lawyer must have both a theory of the case and
an image of the case.
• The proved theory furnishes the rational basis for the decision., but it
does not produce the decision.
• The decision is produced by the image, and it is the image that shapes
the trial…
• The well-tried case is one in which theory and image have combined—
where the image best dramatizes a sound theory.
TRIAL STRATEGY PLAN
• Case: _________________________________________File No. ______________
• 1. List the essential elements of your client’s cause of action or defense and cite law or
precedent (theory of the case).
1.1 ___________________________________________________________
1.2 ___________________________________________________________
1.3 ___________________________________________________________
1.4 ___________________________________________________________
1.5 ___________________________________________________________
• 2. List the basic facts which establish your client’s cause of action or defense and make
it clear, even to a lay person, that justice requires that judgment be rendered in your
client’s favor (image of the case).
• 2.1. __________________________________________________________
• 2.2. __________________________________________________________
• 2.3. __________________________________________________________
• 2.4. __________________________________________________________
• 2.5. __________________________________________________________
• 3. Imagine that the Court will limit your proof to 8-10 facts. Retrace Steps 1
and 2 and strike out the facts that seem least important.
• 4. List the essential elements of your opponent’s defense or cause of action

and cite law or precedent.
• 4.1. __________________________________________________________
• 4.2. __________________________________________________________
• 4.3. __________________________________________________________
• 4.4. __________________________________________________________
• 4.5. __________________________________________________________
• 5. List the basic facts, real or alleged, that your opponent will offer to
establish his/her cause of action or defense and sway the Court’s sense of
justice to your opponent’s favor.
• 5.1. __________________________________________________________
• 5.2. __________________________________________________________
• 5.3. __________________________________________________________
• 5.4. __________________________________________________________
• 5.5. __________________________________________________________
• 6. List four or five possible central themes that will advance your client’s case
and can be supported by evidence. Think boldly, expansively, and creatively.
Be critical and selective later.
• 6.1. _____________________________________________________________
• 6.2. _____________________________________________________________
• 6.3. _____________________________________________________________
• 6.4. _____________________________________________________________
• 6.5. _____________________________________________________________
• 7. Re-read the facts in Steps 1 and 2, and the themes in Step 6 to see if one theme can
fit into another or become a logical part of another. Select the most attractive and
persuasive themes. Then list the revised themes, ranking them by the strength of their
appeal to the judge’s sense of justice and of the evidence supporting them.
• 7.1. _____________________________________________________________
• 7.2. _____________________________________________________________
• 7.3. _____________________________________________________________
8. Test the theme selected by the following questions:
8.1. Is it logical?
8.2. Is it consistent with the judge’s experience?
8.3. Is it simple?
8.4. Can I prove the facts on which it is based?
8.5. Will it appeal to the judge’s sense of justice?
8.6. Will the opponent’s facts diminish the theme’s appeal to

the judge’s sense of justice? ___ ___
9. Beside each fact in Steps 1 to 5
indicate the witness or exhibit that
will be used to prove that fact.
Next:
10. ADVICE: Revise form with client.
This will focus his/her attention on
what is important to his/her case, and
s/he may add a fact, idea or theme
that you may have overlooked.
CASE CHART
KEY FACTS TO PROVE WITNESS EXHIBIT
Ultimate fact no. 1:
_____________________________________________________________________
Evidentiary Facts:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Ultimate fact no. 2:
_____________________________________________________________________
Evidentiary Facts:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
“Theme-building”
The story of your A concrete version Keep hammering it All the time, every
case in one of your theory and throughout the chance you have.
sentence. image of the case. trial.

Brainstorm the facts.
1 2 3 4
List the 5 best Select the top 2 List the 5 worst Select the top 2
facts that support or 3 best facts. facts in the case or 3 worst facts.
your side. (from your client’s
perspective)
http://www.afgec220.org/documents/Pdf/Arb_advocacy.pdf
Put the facts together as a story,
emphasizing the best facts but also taking into account the worst facts.
Make a clear Make it visual or

emotional connection. Reduce the story to
memorable (use an
10 words - a
If you don’t care, why image or catchy
telegram.
should anyone else? phrase)

Use your theme/tagline as often as you can
in the course of the trial.
Pre-trial
Direct or JA of Cross of
defense prosecution
witnesses. witnesses.
Pleadings/
motions.

For example:
…the man who wouldn’t take no for an

answer.
…the company that promised everything

but delivered nothing.
…the cops who looked the other way…

• Warrantless arrest
• Based on a “tip” from an
unknown/unidentified informant
• No overt act indicating the
List the 5 best commission of a crime.
facts in the case. • Search incident to arrest (arrest must
be lawful for search to be valid).
• No receipt issued for gun allegedly
seized from client.
• Warrantless arrest based on a
“tip” from an
Select the top unknown/unidentified informant.
2 or 3 best facts.
• No overt act indicating that the
commission of a crime.
• The gun.
• No license or permit to
possess/carry.
List the 5 worst facts • Red-tag.
in the case. • Possession corroborated by
members of the team that
participated in the operation.
• Bulge in waist.
• The gun.
Select the top 2 or • No license or permit to
3 worst facts. possess/carry.
• My client was just minding his own
business when the furtive finger of
an unknown informant led the police
to arrest him and to claim that he
was carrying a gun.
Put the facts together as a story,
emphasizing the best facts but also • Since the arresting officers did not
taking into account the worst facts. have personal knowledge that he
was committing a crime in their
presence, and were just relying on a
tip from an unknown informant, the
arrest was unlawful, and the search
that came after the arrest was void.
• The accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he
was about to do so or that he had just done so.
• What he was doing was descending the gangplank of
the M/V Wilcon 9 and there was no outward
indication that called for his arrest.
• To all appearances, he was like any of the other
passengers innocently disembarking from the vessel.
Pp v Aminnudin:
• It was only when the informer pointed to him as the
carrier of the marijuana that he suddenly became
suspect and so subject to apprehension.
• It was the furtive finger that triggered his arrest.
• The identification by the informer was the probable
cause as determined by the officers (and not a judge)
that authorized them to pounce upon Aminnudin and
immediately arrest him.
My theme: • The furtive finger of the unknown
informant triggered my client’s unlawful
arrest.
Use non-linear outlining
to prepare and carry out
your cross

• To highlight inconsistencies with other witness’
testimony.
• To demonstrate bias on the part of the witness.
• Attack the witness’s credibility.
Purpose-driven • Highlight errors or confusion in the witness’
cross-examination testimony.
• Elicit favorable evidence or parts of your own
case that the witness can corroborate.
• Identify and underscore those parts of the
witness’s testimony that bolster your case.

To demonstrate that…
• Some form of compensation was provided the witness to secure their

testimony.
• The witness has a personal, professional, or financial interest in the
outcome of a case.
• The witness was coached.
• The witness had interaction with other witnesses prior to trial to
harmonize their testimonies.
• The witness has a close relationship with the opposing party.

• Mindset: confidence, poise and
composure.
• Eye contact.
• Alertness and attention.
• Using the space inside the courtroom Psychological
to your advantage. considerations
• Communicating to the witness that
you know that they are lying,
obfuscating, evading or exaggerating.
• You have to be in control of the
conversation.

• Pay attention and observe the witness even
before s/he takes the witness stand and while
s/he is testifying on direct examination.
The game • When you know a witness is going to lie on

begins the direct examination, look them directly in the eye.
moment you You need to let them know that you know that
they’re lying.
enter the Hall
of Justice.
• Be alert for “coaching” from opposing counsel or
from anyone in the courtroom.
• Use the “Witness Notes” form to avoid having to

take a lot of notes during the direct examination.
WITNESS NOTES
DIRECT/RE-DIRECT CROSS
2/23/2019, 8:00 a.m.
Alighted from a Grab car
Saw a red bus Blue bus
Hit a male pedestrian riding a bicycle Motorcycle
Etc.
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
ALWAYS BE OBSERVANT IN THE COURTROOM
• This is the way I conduct myself in court.

• I may be talking to the judge and my attention may appear to be centered fully on
him, but I am watching the adverse party and all his known witnesses.
• I watch how they move, I watch how they talk.
• I try to see what degree of education they have even before they take the witness
stand, unless I have their deposition or I have some other information about
them.
• Jose W. Diokno, DIOKNO ON TRIAL

Jose W. Diokno, Diokno on Trial:
“When I don’t know them, I ask my client to tell me when they arrive
“kung sinu-sino ang testigo ng kalaban.” And they are under scrutiny
at all times even when they are not on the witness stand.”
“If it’s a very important case, I usually bring an associate and that's
his job. His job is not to assist me during the trial in the sense of
giving me documents, papers, or anything. I don't need that.
His job is to be my other pair of eyes and see exactly what is

happening. So, warn your witness not to be talkative while they are
in the courtroom or in the premises.
“I’ve found many tips to proper cross-examination just by listening or by

having someone listen to what one witness was telling another.”
“For instance, one day a witness was presented in a case. I did not know
where he was residing. I had tried to locate his residence. Nobody knew.
My client did not know either.”
“During the recess, my client overheard this witness talking to a friend and
he mentioned that he was in the PC (Philippine Constabulary) barracks and
had been kept there for a month before he came to testify.”
“So, naturally, on cross-examination one of my questions was: "Is it
true that you are not really residing at the address you gave but
for the last month you have been staying inside the PC barracks?”
“He had to say, ‘Yes.’ And then, came my next question: ‘Is it not
true that you have been prepared to testify, that your affidavit has
been read to you?’"
Jose M. I. Diokno - All Rights Reserved 43

• “And you know, these witnesses generally are reluctant to admit that. So he said,
"No, no, no." But I had made my point.
• So, right there you can gather a lot of things from watching what is happening
around you. I think that the Lord, if He would really want to create effective lawyers,
has to create special human beings with eyes that go 360 degrees around. [Laughter]
• Those are the important matters concerning getting the evidence in.”
https://shopee.ph/The-Model-Pleadings-of-Jose-W.-
Diokno-Volume-1-i.16488350.7640635927
Contents – The Model Pleadings of Jose W. Diokno:
• Petition for Review on Certiorari ----------------- • Aberca v. Ver (damages for torture)
• Petition for Mandamus ----------------------------- • Ocampo v. Duque (to appropriate funds)
• Petition for Injunction to Restrain Arrest ------- • Claro M. Recto v. Castelo (red-tagging)
• Appeal by Certiorari/Petition for Mandamus -- • Fr. Apollo v. Spouses Adam & Eve
• Traverse ----------------------------------------------- • Karl Gaspar (Habeas Corpus)
• Rejoinder --------------------------------------------- • Fr. Rudy Romano (Habeas Corpus, ED)
• Traverse and Reply ---------------------------------- • Isabel Ramos & Eduardo Dizon (HC, ED)
• Case Summary --------------------------------------- • Magtajas v. Burgos (contempt)
• Petitioner’s Memorandum ------------------------- • Mateo v. Villaluz (recusal)
• Amicus Curiae Memorandum --------------------- • Dela Llana v. Alba (validity of BP 129)
• Bonus feature:
• Checklists for Filing Petitions with the SC
Cross-examination by Jose W. Diokno
• People v. Fr. Jose Nacu (1976), military tribunal.
• Violation of Anti-Subversion Act.
• Based on articles seized during a raid of the house where Fr. Nacu lived with other
Catholic priests.
• Fr. Nacu > the first Filipino Missionary of Our Lady of La Salette.

• Not based on a search warrant or warrant of arrest
but on an ASSO – an Arrest, Search and Seizure
Order.
• ASSO’s allowed the dictatorship to arrest any

person even if there was no warrant of arrest
against him/her, and no grounds for a warrantless
The raid arrest.
• ASSO’s were used to go after those who dared to

oppose the dictatorship.
• Fr. Nacu was one of many brave people who were

arrested and detained.

1st witness: Lt. Col. Gerardo Flores
• Direct examination:
• Supervised the search of the house.
• Was present when it was searched and items were seized.
• Implemented the ASSO.
• Supervised the preparation of the inventory of items seized.

Cross-examination of Col. Flores by
Jose W. Diokno
• Col. Flores, the sole authority for the operation that you conducted in the
evening of January 29, 1975 at 8 Hillcrest, Quezon City in connection with the
defendant Fr. Nacu is Exhibit “A”, Arrest, Search and Seizure Order No. 340, is
that correct?
• Yes, that is correct.
• I will return to Exhibit A later but for the time being let me direct your attention
to Exhibit B. Exhibit B is the only inventory that you and the men under you
prepared within the premises of 8 Hillcrest, is that correct?
• That is correct.

People V. Fr. Jose Nacu
cross-examination by jose w. diokno
[TSN, 5-11-76]
• At the time you prepared the inventory, Exhibit B, Fr. Nacu was not present, is that not correct?
• I will come back to Exhibit B later. Let me turn your attention to Exhibit C. Exhibit C is the only
detailed inventory that you and the team under you prepared for all the records, books,
documents, and other things that you seized at 8 Hillcrest on the night of 29 January 1975,
isn’t that correct?
• Exhibit C is intended to include everything that you seized, isn’t that correct?

• Therefore, Exhibit C is intended to be simply the details
of what appears in Exhibit B, isn’t that correct?
• That is the intention.
• So everything that is in Exhibit C has reference to what

is in Exhibit B?
• It does, sir.
• In fact, both of them should be the same in the sense

that Exhibit B contains abbreviated entries and Exhibit C
is the detailed inventory?
• It is supposed to be the same.

• Let me go to another point. You arrived at 8
Hillcrest on or about 1800H or 6:00 p.m. on
29 January 1975, isn’t that correct, Colonel?
• When you arrived, Fr. Nacu, according to you

was not there. Is that correct?
• Fr. Nacu occupied two rooms at 8 Hillcrest,

one as an office and one as a bedroom or
living quarters, is that not correct?

• These two rooms were not adjacent to each other, is that not correct?
• Yes, it’s not.
• In fact, to go from the bedroom to the office one would have to go

through a hallway and then pass at least three to four rooms before going
to the office, is that not correct?
• Now, Col. Flores, at the time of your arrival at 8 Hillcrest, the first place
within the building that you proceeded to was the office of Fr. Nacu, is
that correct?
• Yes.

• He was not there?
• He was not there.
• At the time you entered the office of Fr. Nacu a

search was already in progress, is that correct?
• From the office of Fr. Nacu you proceeded to the

bedroom or living quarters of Fr. Nacu, is that
correct?
• Fr. Nacu was not there either?

• He was not there.

• You caused certain books and other papers of Fr. Nacu to be seized and moved
to the office so they could be included in the inventory of the records searched,
is that correct?
• Correct.
• At the time you seized these records and books from living quarters of Fr. Nacu,
he was not there?
• In fact, after you have done this, you instructed your subordinates to bring them
to the office and yourself proceeded to the office occupied by Fr. Nacu?
• Yes, I did.
• When you arrived for the second time Fr. Nacu was not there?
• Yes.
• You stayed in the office of Fr. Nacu supervising the search and seizure until it was
completed?
• That is right.
• During all the time that you were staying in the office of Fr. Nacu supervising the
search and seizure until the completion, Fr. Nacu never entered his office?
• That is right.
• After you have completed the search and seizure you caused the preparation of
Exhibit B, which you describe as cursory inventory and you caused it to be signed
by Fr. Garon and Fr. Bill Blight and yourself, is that correct?
• Yes.

58
• And it was only at that time that Fr. Nacu upon his arrival that you saw
him and thereafter he was placed under arrest, is that correct?
• Correct.
• So, during all the time of the search Fr. Nacu has not yet been arrested, is
that correct?
• Therefore, the search and seizure was not conducted at the time or right
after but before the arrest of Fr. Nacu, is that correct?
• Now, the only authority that you said you have for your operation
at 8 Hillcrest is Exhibit A, the Arrest, Search and Seizure Order,
which I will refer to as ASSO Nr. 340. I call your attention to the
contents of Exhibit A, specifically to the offense for which you are
supposed to have arrested Fr. Nacu, namely Subversion (violation
of R.A. 1700). That is the only supposed offense of Fr. Nacu, is
that correct? Will you look at the presiding officer and not at the
prosecution panel, colonel.
• This one place here, in subversion. However, in a sense that is the

purpose of this ASSO. It is incumbent upon us to take into custody
all evidence that might have relation on the offense stated herein.
• Col. Flores, would you kindly face the court.

• In other words, everything that you were
supposed to have seized according to you, was
in connection with the offense of subversion?
• It is supposed to be.
• ASSO Nr. 340, Exhibit A does not mention

violation of PD 33, is that correct?
• There is none.

62
• I ask you to look at Exh. A, ASSO 340, the last
paragraph of which reads: You are hereby commanded
further to make an immediate search at any time of the
day/night on the premises above described and
forthwith search and make operation on the personal
property to wit: after which, in the form there are blank
lines and these blank lines have not been filled
indicating that there is nothing to be seized, is that
correct?
• That is true as far as the ASSO is concerned. It is blank

here. However, in the process of operation everything
does not have to be specified. It is for the team to
appraise the situation.
• I will come back to that later. Again, as I read Exhibit A,

will you agree with me that in this ASSO, no documents
were to be seized by you?
• I answered that already and I said there is none.
• Therefore, you are now relying on the general law of search and 64
seizure, is that correct?

• Certainly.
• And the general law on search and seizure was set out by the
Honorable Supreme Court as early as 1909 in Moreno v. Agog: an
officer making an arrest may take from the person arrested any
money or property found upon his person which was used in the
commission of a crime or was the fruit of the crime…
• Your Honor, I object on the ground that the witness is incompetent.

It involves a legal question…
• Witness may answer.
• In all our PC operations, we also rely on the general law as well as

specific law related to our operation.

65
• And you requested the seizure from your team because you considered them to
be subversive.
• Yes.
• Now this book, “Third Revolution” by Karl Stern, do you consider it subversive?
• It is not for me to decide outright whether it is subversive.
• Did you glance at the book before you seized it?

• I just looked at the cover.
• Do you consider a psychology book subversive?

• It may or may not be.
• The Third Revolution is a study of psychiatry is it not?

• Yes sir.
Do you consider psychiatry subversive?
It is not.
You also seized another book, The Psychology of Perception by M.D. Vernon. Do you consider psychology
subversive?
It is not.
How about perception?
The word is not.
Showing to you another book, Sociology of the Family. Colonel, did you consider this as subversive?
Objection your Honor.
Sustained.

68
• Did you consider this to be the fruit of a crime?

• Objection.
• Sustained.
• Did you consider this as a means of committing a

crime?
• Objection.
• Sustained.
• I direct your attention to the pamphlet “No Tayo

sa Plebiscite.” This pamphlet refers to the
plebiscite originally set for January 5, 1973 under
PD 33, is that not correct?
• The witness would be incompetent.
• Sustained.

69
• Are you aware, Mr. Witness, that on December 1, 1972,

GO No. 17 was issued providing that “No person shall be
questioned, interrogated or investigated before or after
the plebiscite, for any views for or against.” Are you aware
of that?
• Same objection, your Honor.
• Sustained.
• For the record, I wish to state that my purpose in asking

this question is to show that in seizing this pamphlet, the
witness and the raiding party violated GO 17 and since
every man is presumed to know the law, they are
presumed to know that the seizure of this pamphlet was
unlawful and the pamphlet is inadmissible in evidence.
• Provost Court Officer: It is up to the court to decide.
• Is it not a fact Col. Flores that some documents mentioned in exhibit C are
nowhere to be found in Exhibit B?
• It is not also found here, but if I may be permitted to explain…
• You may do so on redirect.
• There is another book listed in Exhibit C, Elenchus Sodalium by Gabriel

Marcel. Were you aware that Gabriel Marcel is an ecclesiastical minister?
• No sir.

• Your Honor please. At this juncture I would like to make of record that it
is my intention to ask this witness questions concerning the items listed
in Exh. C as subversive:
• No. 1 – Did he consider these items subversive?
• No. 2 – Did he consider them as subjects of a crime?
• No. 3 – Did he consider them as objects of a crime?
• No. 4 – Did he consider them as a means of committing a crime?
Section 3, Rule 126. Personal property to be seized. — A search warrant may be issued
for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (2a)

72
• However, when I ask the questions, objections are made and

sustained by the presiding officer. Therefore, I would like to
ask the presiding officer if I will be allowed to ask these
questions or if I would only simply make it of record.
• Let me go to item No. 1, do you consider this subversive?

• It may not be subversive, it depends.
• On its face does it appear to be subversive?

• Maybe.
• Is that the best answer you can give?

• Yes.

Document No. 4, Memo of May 16, 1969 refers to the greetings that Fr.
Nacu received in the course of his graduation four years before the
search. Would you consider this document subversive?
Same objection.
Witness may answer.
That graduation alone, it is not subversive but when it refers to other

things I am not competent to answer that.

• This memo dated Sept. 11, 1969 from the Ateneo de
Manila telling Fr. Nacu that he had passed the
examination, would you consider that subversive?
• I am not competent to answer that.
• At the time you seized that document you have no idea

whether it is subversive?
• No.
• At the time you seized these documents you had no idea

as to whether they are subversive or not?
• Yes.

• In view of that answer I think it is not necessary for me to go further,
Your Honor. I will be filing a motion to suppress tomorrow morning.

What did the cross establish?
• That the search came before the arrest, and therefore could not be justified
as a search incident to arrest.
• That the search was not authorized by a search warrant.
• That Fr. Nacu was not present when the rooms he was occupying were
searched.
• That items were taken that had nothing to do with the alleged offense.
• That the witness and the raiding party violated G.O. 17.
• That the ASSO did not authorize the seizure of any items.
Takeaways from the cross-examination
Control of the Thorough

conversation preparation
and of the and planning
witness
Well
Specific
formulated
objectives
questions
Active
listening

Cross-examining
the evasive witness
Cross by
Richard “Racehorse” Haynes:

• Sir, you have previously given testimony in this case, have you not?
• Yes, sir, I gave a deposition.
• And prior to the taking of the deposition you swore that you would tell the truth?
• Yes, I believe so.
• Well, let me refresh your memory (approaching the witness). Here it is, page one.
“The witness was duly sworn.” Do you remember swearing to tell the truth, the
whole truth, and nothing but the truth, so help you God?
• Yes, sir.
• That’s the same oath you have taken here today, isn’t it?
• Yes, sir.

• Do you recognize this transcript as a copy of your deposition of March 5, 1985?
• If you say that’s it, then it is.
• Wait a minute and let’s satisfy you. Look at this signature. R.J. Johnson. That is your
signature, isn’t it?
• Yes, sir.
• And you signed your name to this document after you had reviewed the deposition for
errors in your testimony?
• I don’t remember.
• Will you agree with me that just above your name is the notation, “I have read this
deposition and there are no errors in my testimony.”
• I see it.
• And your name is below that entry.

• Don’t mean I read the deposition.
• Follow me as I read, at page 19, line 25, where the lawyer asks you: “Mr.
Johnson, did you ever steal money or anything of value from your employers?”
and you answer, at page 20, “Never, I’d never do that.” You did say that,
didn’t you?
• That’s what is says.
• And yet, here today, before this court [pause] and this jury [pause], you have
told us that you in fact stole money from these accused citizens [never
defendants], didn’t you?
• Yes, sir I did.
• In fact, during Mr. Berg’s cross-examination, you admitted to have stolen

upwards of 20,000 gallons of fuel at a time, didn’t you?
• I ain’t no thief. Everybody was doing it. Including your clients.

• Perhaps it was my question and if so, I apologize. Let me ask it again: Did you
tell Mr. Berg on cross-examination only minutes ago that you had stolen for
your own personal account up to 20,000 gallons of diesel fuel?
• Yes, I said that.
• One of these statements is not correct, then, Mr. Johnson?

• Is that a question?
• Perhaps the way I worded it, the question confused you, and I apologize. Let
me ask it this way. Which is the lie: the statement you swore to under oath on
deposition—that you did not steal from your company—or the one you swore
to today, that you in fact stole thousands of gallons of diesel fuel?
• My testimony today is the truth.

83
Takeaways from the cross-
examination
• Keep on hounding and pounding until you get the answer you expect from the
witness. Don’t stop until you get a responsive answer.
• Effective impeachment with a PIS:

• Lay the basis.
• Same oath.
• “Which is the lie…?”
• “So that when you swore to tell the whole truth when you gave your
deposition, you did not see fit to honor your oath to God?”
• Keep your composure, even when you have an antagonistic witness who’s out to
get your clients.
Cross-examination by
David Berg

• Client (accused): victim’s ex-husband.
86 • Witness: victim’s widower.
• You fairly shook with rage when you came into this court and saw Mr. Jones, my client?
• Yes.
• You glowered at him, that is a fair statement, isn’t it?

• Yes.
• And you hate Mr. Jones because you believe he killed your wife?
• Yes.
• And because you were able to live together as man and wife for only a brief period of
time?
• Yes. A year, a month, and two weeks.
• And I take it you are bereaved?
• Yes.
• And that you deeply loved your wife?
• Yes.
• Tell the jury who Billy Faye is.
• Billy Faye?
• Billy Faye.
• My fiancee.
• And where does Billy Faye Baxter live?
• She lives on my farm, with me.
• The farm you inherited from your deceased wife?
• That’s right.

• How much time elapsed after the death of your wife before Billy Faye moved in with
you at your farm?
• I first laid eyes on Billy Faye—
• Perhaps it was my question and I apologize. How long was it, after the death of your
wife, that Billy Faye Baxter moved in with you in the farm of yours?
• Six months.
• You were pretty racked with grief, were you? How many days after your wife’s death
did it take for you to be interested in another woman?
• I’m still not over it.
• All right. Tell me where you met Ms. Billy Faye Baxter.
• At the Continental Trailways Station on November 5.

• When did Ms. Billy Faye Baxter move into your house?
• The first week of December I believe.
• So you would say roughly a month passed in this romance before the two
of you decided to move in together?
• That’s right. If you want to know, it was 14 days.
• And you claim that you never met Billy Faye before you ran into her at a
bus station?
• I didn’t run into her at a bus station. It was a planned meeting.
• Okay, tell me how it was planned.

• She is a mail-order bride. She met me through an ad I placed in Mother
Earth News. We corresponded for approximately a month to six weeks. We
phoned each other. I have some $150 in phone bills.
• Well, you could certainly pay those, given what you inherited from your wife? (Inaudible
answer).
• Wait a minute. Did you say Mother Earth News?

• Yes.
• And your wife was killed June 23, only 3 or 4 months before the ad appeared?
• Yes.
• Let me ask you, are you quite certain that ad was in October?
• I will bring the magazine if you like.
• I would like that and you can bring it tomorrow.
• Incidentally, how many responses for a wife did you get from the ad in Mother Earth
News?
• Between 20 to 30. And it was not for a wife.

• It was not for what?
• Not for a wife.
• For a pen pal?

• Whatever.
• You did call her a mail-order bride.

• Yes, sir.
• What did the ad say?

• “Rural violin maker seeks slim Mother Earth Type.” To the best of
my memory now. I will produce the document.
• Seeks—did you say slim?

• Yes.
92
• Now according to this, in order to have your ad in this
issue, the September-October issue, you had to have
your ad in before July 11, isn’t that correct?
• That is what it says.
• Now, your wife died on June 23, 1983, did she not?
• She was killed.
• She was killed, yes. No one disputes that. It is who

killed her we are after here. Now sir, was the date of
her death June 23?
• Yes.
• Did you pay for this ad?

• Yes.

94
• And you paid by July 11, only 14 days after the death of your wife?
• Yes.
• Isn’t it a fair statement, isn’t it safe to say, that you were thinking about
having another woman there living with you at your farm very shortly
after the death of your wife?
• No.
• Maybe before her death you longed for a slim Mother Earth type?
• Sir, that is a lie.
• Yet you placed this ad?

• Yes.
• Then let me ask again. Weren’t you looking for another woman, a slim
Mother Earth type to move in with you?

• May I amplify?
• Court: You can answer the question.
• During that period I was crazy, insane with grief. I was under the care of a psychologist. I will
not accept rational responsibility for my actions at that time.
• So, you would tell this jury that you were just too crazy to be responsible for what you did?
• Yes.
• I understand. And you are a man of great sensitivity?
• Yes.
• And you are not the kind of man who would have the kind of anger it takes to kill. Please take
your time and answer calmly, and I see you are shaking again.
• Yes, I have that kind of anger. I will tell you true.
• You could kill, is that what you are telling us?

• Yes, I could kill.
Timing.
Persistence.
Takeaways
Unlike on direct, where it’s the answer that matters,
on cross it’s often the question that matters.
The cross examiner should expect the witness to

deny facts that don’t jive with the his/her version of
events. T.he challenge is to make it clear to the judge
that the witness is obviously lying

• They do this by—
• Asking leading questions.
Good cross- • Putting words in the witness’ mouth.
• Asking short questions.
examiners • Using plain English.
control the • Asking only one new fact per question.
conversation • Avoiding the use of modifiers and
generalizations.
and thus • Listening closely to the witness’ answers.
control the • Not arguing with the witness.
witness. • Blocking avenues of escape and retreat.
• Isn't it fair to say that…?
• ….is that a fair statement?

Tip:
• Is that the best answer you can give?
some very
useful • Let me suggest that…
phrases
• Which is the lie…?
• …you did not see fit to honor your

oath to God? 98
Fact/occurrence/eyewitnesses;
Cross-examining— Expert witnesses; and
Procured/perjured witnesses.

Opinions, conclusions;
Attention;
Fact witnesses
Coached or scripted testimonies;
Occurrence witnesses
Eyewitnesses Inherently incredible testimony;
People v. Alviar;
People v. Salas.
101
Physical factors that may affect the

“positive” identification.
Length of time. Distance. Illumination. Eyesight.

Cross-
examining
eyewitnesses
Psychological factors.
Distracted or
Training/experience. Undue influence.
diverted attention.

102
• Failure to report what they saw to the

Other police, or to mention it when
questioned by police.
factors
• Failure to mention it to close family
members or close friends.

103
• Impeachment
• Prior inconsistent statement.
• Inherently incredible testimony.
• Reputation for dishonesty.
• Refutation with your own eyewitness or other

defense evidence.

• Sec. 11. Impeachment of adverse party’s
witness. -- A witness [of the adverse
party] may be impeached by
contradictory evidence, by evidence that
his/her general reputation for truth,
honesty or integrity is bad, or by
evidence that he or she made at other
2020 Amended times statements inconsistent with his
Rules On Evidence or her present testimony, but not by
evidence of particular wrongful acts,
except that it may be shown by the
examination of the witness, or record of
the judgement, that he or she has been
convicted of an offense.
104 Jose M. I. Diokno - All rights reserved

• Sec. 12. Impeachment by evidence of conviction of crime. –
For the purpose of impeaching a witness, evidence that
s/he has been convicted by final judgment of a crime shall
be admitted if (a) the crime was punishable by a penalty in
excess of one year; or (b) the crime involved moral
turpitude, regardless of the penalty.
• However, evidence of a conviction is not admissible if the
conviction has been the subject of an amnesty or annulment
of the conviction.

Cross-examining the expert witness
01 02
Preparing your cross: Impeaching the expert
“more expert than the witness with a learned
expert.” treatise.

Most challenging type of cross.
Cross-examining
professional/perjured
witnesses
Most of the time, you’ll have to make do

with circumstantial admissions, e.g.:
Witness never Never told anyone
reported the incident. about it.

People v. Alviar, G.R. L-32276, Sept. 12, 1974:
Prosecution witnesses Circumstantial

The case of the
who knew too much – evidence indicating
evidence that fit too
and too little – at the concocted or
perfectly.
same time. fabricated testimonies.

First eyewitness
• DIRECT: • CROSS:
• I saw the accused (Jose) chase the • I never told anybody what I saw
victim (his wife Dolores) along before I was presented as a witness..
Tabacalera St. at around 12:50 a.m.
When he caught up with her he
pulled her hair, twisted her right arm • Not even my wife and nine children.
behind her, and pushed her back to
their house.
• I didn’t have a watch at the time (but
I knew the exact time of the
occurrence).
• Was able to identify them because of
a lamp post that was brightly
lighted.

2nd eyewitness
• Next door neighbor of Jose and • Never reported it to the police, never told
Dolores. her husband or children.
• Woke up between 1:00 to 2:00
a.m., saw Jose chasing Dolores in • First time she told anyone was when she
the street, then push her back went to the NBI and executed an affidavit.
into their house. Heard a • Can’t remember what Jose was wearing or
"kalabog”, and Dolores moaning color of his clothing.
"Ina ko po”. • Can’t recall if Jose was wearing shoes or if
• At dawn, went to the river to he was barefoot.
throw garbage; saw Jose with a
• No clock or wristwatch in her house, can’t
flashlight focused on the bank of
calculate how long an hour is.
the river.
• Didn’t notice color of Dolores' dress,
condition of her hair or her appearance.
3rd eyewitness
• Went home around 1:00 a.m. from a • Never reported what he saw to the
gambling place. police.
• Parang may nagaaway sa bahay ni
Jose. • Couldn’t remember what Jose and
• Went near the river to move his the woman were wearing.
bowels.
• Saw a woman, unconscious, being • Couldn’t remember if he had a
carried by Jose and another man. wristwatch at that time.
• Recognized Jose by the lighted post
near the riverbank.
• Went home.
4th eyewitness: Ernesto Manalo - direct:
Forced to give a
statement to the NBI Ordered to say that he
but it was the lawyer recognized one of the
who gave the answers men as Jose Alviar.
in that statement.
Cross -- Manalo admits that:
• Coached in the house of Mr. Young, and told to lie to the NBI.
• Forced by a prosecutor to identify Jose Alviar.
• Always accompanied by a policeman or bodyguard paid by Mr. Young.
• What he said before about a woman being placed in a banca by two men
was not true; he was taught only to say so.
• Could no longer bear the burden suffered by his conscience.
• Mr. Young paid all the witnesses in his presence.
• He owns Philippine Iron Works and is married to Dolores’ cousin.

SC acquits Jose:
• Prosecution witnesses had no time pieces but their accounts dovetailed perfectly.
• “[W]here a witness undertakes to swear positively from mere memory to the

fraction of hours or to minutes, we may well distrust his testimony and doubt his
sincerity." Moore, A Treatise on Facts, Vol. III, p. 988.
• Prosecution witnesses had tenacious memories not only as to time, but also as to
vital incidents, but they were extraordinarily forgetful of, or inattentive to,
incidental matters.
• “This besets suspicion of veracity.”

115 • While the prosecution witnesses were very positive as to the material
incidents, they were very evasive, unobservant and forgetful of the incidental
matters which they should have known had they really been there:
• Couldn’t remember what the victim and accused were wearing;
• Couldn’t describe their attire or footwear;
• Couldn’t provide other details which they should have known if they had
really been there;
• Never reported the incident to their close relatives or the police.
• “Such a close and minute agreement of the testimonies of the witnesses for
the prosecution induces suspicion of confederacy and fraud.”
• As held in other cases—
• “It often happens with fabricated stories that minute particulars

have not been thought of;” and
• “…witnesses who come to tell a concerted story are always

reluctant to enter into particulars, and perpetually resort to shifts
and evasions.”
• “[A]n honest witness, who has sufficient
memory to state but one fact, and that
fact a material one, cannot be safely
relied upon as such weakness of
memory not only leaves the case
On honest but unreliable incomplete, but throws doubt upon the
witnesses: accuracy of the statements made.”
• “Such a witness may be honest, but his

testimony is not reliable.”
• Circumstantial evidence can often be used to prove or
disprove disputed facts in administrative, civil and
criminal proceedings.
• Circumstantial evidence can even spell the difference

between an acquittal and conviction of persons charged
with criminal offenses.
Rufus Choate:
• When you ventured into the realm of speculations in
Wall Street, I presume you contemplated the possibility
of the market going against you, did you not?
• Witness: Well no, Mr. Choate, I went into Wall Street to

make money, not to lose it. (Laughter)
• Quite so, sir, but you will admit, will you not, that
sometimes the stock market goes contrary to
expectations?
• Oh yes, I suppose it does.

120
• You say the bonds were not your own property but your wife’s.
• Yes, sir.
• And you say that she did not lend them to you for purposes of
speculation, or even know you had possession of them?
• Yes, sir.
• You even admit that when you deposited the bonds with your
broker as collateral against your stock speculations, you did not
acquaint him with the fact that they were not your own
property?
• I did not mention whose property they were, sir.
• Well, sir, in the event of the market going against you and
your collateral being sold to meet your losses, whom did you
intend to cheat, your broker or your wife?
• Sir James Scarlett: Sir, you say that the two
melodies are the same but different. Now, what
do you mean by that?
• Tom Cooke. I said that the notes in the two
copies are alike, but with a different accent, the
SIR JAMES SCARLETT one being in a common time and the other in
six-eighth time...
• Sir James: What is a musical accent?
• Cooke: My terms are nine guineas a quarter,
sir. [Laughter]
• Sir James: Never mind your fees, what is a musical accent? Can you see it?
• Cooke: No, Sir James.
• Sir James: Can you feel it?
• Cooke: A musician can. [Great laughter]
• Sir James: (very angry) “Now pray, sir, don’t beat around the bush..explain
to..the jury, who…know nothing about music, the meaning of what you call
accent.”
• Cooke: Accent in music is a certain stress
laid upon a particular note in the same
manner as you would lay a stress upon a
given word for the purpose of being
better understood. Thus, if I were to say,
‘You are an ass,’ the accent rests on
‘ass’; but if I were to say, ‘You are an
ass,’ it rests on you, Sir James.
• [Shouts of laughter by the whole court,

including the bench]
Cross-examination by Gerry Spence:
“A good cross should have a beginning

and an end, should have a purpose, should
have a direction, should tell a story.”

You’re a journalist?
Yes.
You believe in freedom of speech?
Yes.
It’s an important right?
Yes.
It’s guaranteed to us under the Constitution?
Yes.
Why is it an important right?
Because democracy requires it.

Litigation, Vol. 10, No. 2 Winter 1983
• Democracy can’t work without a free press, can it?

• No.
• People of the press think it’s one of the most important rights of
all.
• Yes.
• It’s as important as freedom of religion?
• Yes.
• It’s as important as not having to testify against yourself?
• Yes.
• And you belong to an organization
that protects the First Amendment
right?
• Yes.
• Your organization hires lawyers?
Litigation, Vol. 10, No. 2 Winter 1983 • Yes.
• These lawyers file briefs in the courts
. . . to protect that right, isn’t that
true?
• Yes.
You need to lay a foundation as to what we’re talking about, what

makes this right important, why we’re all upset about freedom of the press.
• You agree that no right can exist without a corresponding duty?
• We have a right, for example, to drive down a street and you agree that we
have a duty not to run over people carelessly? .
We have a duty not to be reckless?
So it isn’t enough to say I have a right. I must also

say I have a duty not to exercise that right recklessly
to injure someone. Correct?
Now when people of the press preach the right to

Upping the pressure… freedom of the press—do you also preach what your
duty is?
Do you know what your duty was on October 1980

when you wrote the mayor’s kickback story?
What exactly did you think your duty was to the

mayor when you wrote that story?
• …My questions tell a story. They are properly leading and it really
doesn’t make too much damn difference how he answers the questions, so
you are not afraid….Now we turn to the facts.
• You had a duty not to be reckless when you wrote a story that could
destroy a man, isn’t that true?
• You had a duty not to be reckless, didn’t you?

• And you knew that the reckless story might destroy a man, didn’t you?
• You have attended seminars, workshops, in which this matter was

discussed, haven’t you? Jose M. I. Diokno - All rights reserved 130
• And your editors have talked to you about being careful
not to destroy innocent people, isn’t that true?
• You understand that you can kill a man with words, in

effect—kill his heart, kill his reputation, destroy his pride
with words just as easily as you can kill a man with a
gun?
• You would agree that next to life there is nothing more

valuable to an honourable man than his reputation?
• You knew that at the time, didn’t you?

• You knew on October 20 that you couldn’t be reckless with your right to a
free press anymore than anyone can be reckless with a gun?
Now we’re starting to develop a picture. It’s all right if there are objections.
What we want is to create word pictures, word images, because of what this
thing is all about—the power of the press—as powerful as it is to shoot
somebody with a gun.

• Did you ever hold a public office?
• Do you believe that all politicians are dishonest, and therefore open
game and that you can therefore say anything that you want to say
about them?
• If I came to you with a rumour that your editor-in-chief was a crook

and took bribes to write a false story about Mayor Winslow, you
wouldn’t write that in your paper, would you?
• You would use your discretion, you would use your judgment?
• You have a duty not to print groundless rumours, right?
• So when Miss Hazelton came to you with this infamous and

dastardly story, she handed you, so to speak, a loaded gun?
• She handed you what you could use to destroy a man, isn’t
that right?
• And you knew that and understood that, didn’t you?

• Now you had the choice, Mr. Reporter, of either pointing

this loaded gun and firing at Mayor Winslow, did you not?
• The choice was up to you, and you chose to write the

story, right?
• You chose to point the gun, you chose to pull the trigger,
didn’t you?”

“That is the kind of background I would have

created. With objections it might have taken all morning.
But with objections, by the time we worked through it,
one question at a time, one objection at a time, the story
would have gotten fully and completely told. Not once
but 20 times….”

Conscience.
• A disease of the brain.
• Painful for anyone, but fatal for lawyers.
• Fortunately, very rare in the profession.
--White’s Law Dictionary

Diokno - Jose Manuel - Advanced Cross-Examination

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ADVANCED

10 hours’ prep for every hour in court.

CROSS- Should include:

Jose M. I. Diokno - All rights reserved 3

• There are two sides to every lawsuit.

Jose W. Diokno • A case important enough to try is

• A case can be over-tried but never

Jose M. I. Diokno - All rights reserved 4

• Both law and facts are important.

• Both may need to be investigated

It starts with planning

What’s my theme or tagline

Jose M. I. Diokno - All rights reserved 7

Jose M. I. Diokno - All rights reserved 8

The lawyer must create in the

By highlighting relevant Jose

Jose M. I. Diokno - All rights reserved 10

• Case: _________________________________________File No. ______________

• 4. List the essential elements of your opponent’s defense or cause of action

8.2. Is it consistent with the judge’s experience?

8.4. Can I prove the facts on which it is based?

8.5. Will it appeal to the judge’s sense of justice?

8.6. Will the opponent’s facts diminish the theme’s appeal to

Jose M. I. Diokno - All rights reserved 21

Make a clear Make it visual or

Jose M. I. Diokno - All rights reserved 23

Jose M. I. Diokno - All rights reserved 24

…the man who wouldn’t take no for an

…the company that promised everything

…the cops who looked the other way…

Jose M. I. Diokno - All rights reserved 25

Jose M. I. Diokno - All rights reserved 33

Jose M. I. Diokno - All rights reserved 35

• Some form of compensation was provided the witness to secure their

Jose M. I. Diokno - All rights reserved 36

Jose M. I. Diokno - All rights reserved 37

The game • When you know a witness is going to lie on

• Use the “Witness Notes” form to avoid having to

2/23/2019, 8:00 a.m.

Alighted from a Grab car

Saw a red bus Blue bus

Hit a male pedestrian riding a bicycle Motorcycle

• This is the way I conduct myself in court.

• Jose W. Diokno, DIOKNO ON TRIAL

His job is to be my other pair of eyes and see exactly what is

“I’ve found many tips to proper cross-examination just by listening or by

Jose M. I. Diokno - All Rights Reserved 43

• People v. Fr. Jose Nacu (1976), military tribunal.

• Violation of Anti-Subversion Act.

Jose M. I. Diokno - All rights reserved 47

• ASSO’s allowed the dictatorship to arrest any

The raid arrest.

• ASSO’s were used to go after those who dared to

• Fr. Nacu was one of many brave people who were

Jose M. I. Diokno - All rights reserved 48

• Supervised the search of the house.

• Was present when it was searched and items were seized.

• Implemented the ASSO.

• Supervised the preparation of the inventory of items seized.

Jose M. I. Diokno - All rights reserved 50

Jose M. I. Diokno - All rights reserved 51

• So everything that is in Exhibit C has reference to what

• In fact, both of them should be the same in the sense

• Case: ___________________________File No.