Professional Documents
Culture Documents
A GRAPHIC G
E V I D E N C E
(A.M. NO. 19-08-
15-SC)
EDMAR D. LERIOS
IBP Cebu Chapter
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Table of
CONTENTS
2019 Salient Changes to the Rules on Evidence
with Practice Tips on Objections,
Cross-examinations, and Impeachment
IN DECIDING WHETHER TO
TAKE JUDICIAL NOTICE, THE
COURT MUST HEAR THE
PARTIES IF THE MATTER IS
DECISIVE OF A MATERIAL
ISSUE IN THE CASE.
Before judgment or on appeal, the court, motu
proprio or upon motion, may take judicial notice
of any matter and shall hear the parties thereon
if such matter is decisive of a material issue in
the case (Sec. 3, Rule 129).
E.D. LERIOS
IBP CEBU
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RULES ON EVIDENCE
2019 Salient Changes
JUDICIAL ADMISSION
& DOCUMENTARY EVIDENCE
DOCUMENTARY EVIDENCE
INCLUDES DIGITAL PHOTOS,
RECORDINGS, SOUNDS, VIDEOS,
OR THEIR EQUIVALENT.
Documents as evidence consist of writings, recordings,
photographs or any material containing letters, words, sounds,
numbers, figures, symbols, or their equivalent, or other modes
of written expression offered as proof of their contents.
Photographs include still pictures, drawings, stored images, x-
ray films, motion pictures or videos (Sec. 2, Rule 130).
E.D. LERIOS
IBP CEBU CHAPTER
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ORIGINAL DOCUMENT RULE
2019 Salient Changes
RULES ON EVIDENCE
PHOTO'S NEGATIVE OR
PRINTED NEGATIVE IS AN
ORIGINAL.
An 'original' of a photograph includes the negative
or any print therefrom (Sec. 4 (a), Rule 130).
E.D. LERIOS
IBP CEBU
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2019 SALIENT CHANGES
RULES ON EVIDENCE
Exceptions to the
Original Document Rule
4.) ORIGINAL IS A
PUBLIC RECORD
When the original is a public record in the
custody of a public officer or is recorded in a
public office (Sec. 3 (d), Rule 130).
E.D. LERIOS
IBP CEBU
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RULES OF ADMISSIBILITY
A DUPLICATE IS A COUNTERPART
OR THE EXACT IMPRESSION OF
THE ORIGINAL DOCUMENT.
A 'duplicate' is a counterpart produced by the same impression
as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by
mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which
accurately reproduce the original (Sec. 4 (b), Rule 130).
A DUPLICATE IS ADMISSIBLE
AS IF ITS AN ORIGINAL DOCUMENT.
A duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the
original, or (2) in the circumstances, it is unjust or inequitable to
admit the duplicate in lieu of the original (Sec. 4 (c), Rule 130).
SECONDARY EVIDENCE
CONTENTS OF VOLUMINOUS
DOCUMENTS MAY BE PRESENTED IN A
SUMMARY,CHART, OR CALCULATION
BUT THE ORIGINALS MUST BE
AVAILABLE FOR EXAMINATION.
E.D. LERIOS
IBP CEBU
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2019 SALIENT CHANGES
E.D. LERIOS
IBP CEBU
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WITNESS
DISQUALIFICATIONS
2019 Salient Changes
RULES ON EVIDENCE
LAWYER-CLIENT PRIVILEGE
E.D. LERIOS
IBP CEBU
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PRIVILEGED
COMMUNICATIONS
EXCEPTIONS TO THE
LAWYER-CLIENT PRIVILEGE
(Sec. 24, Rule 130)
3 BREACH OF DUTY BY
LAWYER OR CLIENT.
4 DOCUMENT ATTESTED
BY THE LAWYER.
5 JOINT CLIENTS.
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IBP CEBU
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2019 SALIENT CHANGES
Privileged
Communications
DOCTOR-PATIENT PRIVILEGE
PHYSICIANS, PSYCHOTHERAPISTS
OR PERSONS BELIEVED TO BE
DOCTORS CANNOT BE EXAMINED
ON CONFIDENTIAL
COMMUNICATIONS.
A physician, psychotherapist or person reasonably
believed by the patient to be authorized to practice
medicine or psychotherapy cannot in a civil case,
without the consent of the patient, be examined as to
any confidential communication made for the purpose
of diagnosis or treatment of the patient’s physical,
mental or emotional condition, including alcohol or
drug addition, between patient and his or her physician
or psychotherapist (Sec. 24, Rule 130).
PHYSICIAN-PATIENT PRIVILEGE
APPLIES TO MEMBERS OF THE
PATIENT'S FAMILY.
This privilege also applies to persons, including
members of the patient’s family, who have
participated in the diagnosis or treatment of the
patient under the direction of the physician or
psychotherapist (Sec. 24, Rule 130).
WHO IS A
PSYCHOTHERAPIST?
A “psychotherapist” is:
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IBP CEBU
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PRIVILEGED
COMMUNICATIONS
Expanded Scope of Disqualifications
MINISTER-PENITENT PRIVILEGE
AN OFFER OF COMPROMISE IS
NOT AN ADMISSION OF LIABILITY
IN CIVIL CASES.
In civil cases, an offer of compromise is not an admission
of any liability, and is not admissible in evidence against
the offeror (Sec. 28, Rule 130).
STATEMENTS IN COMPROMISE
NEGOTIATIONS ARE GENERALLY
NOT ADMISSIBLE IN CIVIL CASES.
Neither is evidence of conduct nor statements made in
compromise negotiations admissible, except evidence
otherwise discoverable or offered for another purpose, such
as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution (Sec. 28, Rule 130).
E.D. LERIOS
IBP CEBU
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2019 Salient Changes
ADMISSIONS
Rules on Evidence
Admission by
co-partner or agent.
Admission by
conspirator.
Admission by privies.
E.D. LERIOS
IBP CEBU
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2019 Salient Changes
HEARSAY RULE
Rules on Evidence
HEARSAY IS
INADMISSIBLE
Hearsay evidence is inadmissible except as
otherwise provided in the Rules of Court
(Sec. 37, Rule 130).
WHAT IS HEARSAY?
Hearsay is a statement other than one made by the
declarant while testifying at a trial or hearing, offered
to prove the truth of the facts asserted therein.
E.D. LERIOS
IBP CEBU
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HEARSAY RULE
EXCEPTIONS
DYING DECLARATION
The declaration of a dying person, made under
the consciousness of an impending death, may
be received in any case wherein his or her
death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of
such death (Sec. 38, Rule 130).
STATEMENT OF A
DECEDENT OR A PERSON
OF UNSOUND MIND.
In an action against an executor or administrator
or other representative of a deceased person, or
against a person of unsound mind, upon a claim
or demand against the estate of such deceased
person or against such person of unsound mind,
where a party or assignor of a party or a person
in whose behalf a case is prosecuted testifies on
a matter of fact occurring before the death of the
deceased person or before the person became of
unsound mind, any statement of the deceased or
the person of unsound mind, may be received in
evidence if the statement was made upon the
personal knowledge of the deceased or the
person of unsound mind at a time when the
matter had been recently perceived by him or her
and while his or her recollection was clear. Such
statement, however, is inadmissible if made
under circumstances indicating its lack of
trustworthiness (Sec. 39, Rule 130).
E.D. LERIOS
IBP CEBU
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HEARSAY RULE
EXCEPTIONS
DECLARATION
AGAINST INTEREST.
The declaration made by a person deceased or
unable to testify against the interest of the
declarant, if the fact asserted in the declaration
was at the time it was made so far contrary to the
declarant’s own interest that a reasonable person
in his or her position would not have made the
declaration unless he or she believed it to be true,
may be received in evidence against himself or
herself or his or her successors in interest and
against third persons.
ACT OR DECLARATION
ABOUT PEDIGREE.
The act or declaration of a person deceased or
unable to testify, in respect to the pedigree of
another person related to him or her by birth,
adoption, or marriage or, in the absence thereof, with
whose family he or she was so intimately associated
as to be likely to have accurate information
concerning his or her pedigree, may be received in
evidence where it occurred before the controversy,
and the relationship between the two persons is
shown by evidence other than such act or
declaration.
E.D. LERIOS
IBP CEBU
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HEARSAY RULE
EXCEPTIONS
FAMILY REPUTATION OR
TRADITION REGARDING
PEDIGREE.
The reputation or tradition existing in a family
previous to the controversy, in respect to the
pedigree of any one of its members, may be
received in evidence if the witness testifying
thereon be also a member of the family, either
by consanguinity, affinity, or adoption. Entries
in family bibles or other family books or
charts, engraving on rings, family portraits
and the like, may be received as evidence of
pedigree (Sec. 42, Rule 130).
COMMON REPUTATION.
Common reputation existing previous to the
controversy, as to boundaries of or customs
affecting lands in the community and
reputation as to events of general history
important to the community, or respecting
marriage or moral character, may be given in
evidence. Monuments and inscriptions in public
places may be received as evidence of common
reputation (Sec. 43, Rule 130).
E.D. LERIOS
IBP CEBU
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HEARSAY RULE
EXCEPTIONS
RECORDS OF REGULARLY
CONDUCTED BUSINESS
ACTIVITY.
A memorandum, report, record or data
compilation of acts, events, conditions, opinions
or diagnoses, made by writing, typing, electronic,
optical or other similar means at or near the time
of or from transmission or supply of information
by a person with knowledge thereof, and kept in
the regular course or conduct of a business
activity, and such was the regular practice to
make the memorandum, report, record, or data
compilation by electronic, optical or similar
means, all of which are shown by the testimony
of the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence (Sec.
45, Rule 130).
TESTIMONY OR DEPOSITION
AT A FORMER PROCEEDING.
The testimony or deposition of a witness deceased or
out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or
otherwise unable to testify, given in a former case or
proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in
evidence against the adverse party who had the
opportunity to cross-examine him or her (Sec. 49,
Rule 130).
E.D. LERIOS
IBP CEBU
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HEARSAY RULE
EXCEPTIONS
RESIDUAL EXCEPTION.
A statement not specifically covered by any of
the foregoing exceptions, having equivalent
circumstantial guarantees of trustworthiness, is
admissible if the court determines that (a) the
statement is offered as evidence of a material fact;
(b) the statement is more probative on the point for
which it is offered than any other evidence which
the proponent can procure through reasonable
efforts; and (c) the general purposes of these rules
and the interests of justice will be best served by
admission of the statement into evidence.
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2019 Salient Changes
OPINION RULE
Rules on Evidence
WITNESS' OPINION IS
NOT ADMISSIBLE.
The opinion of a witness is generally not
admissible (Sec. 51, Rule 130).
EXPERT OPINION IS
ADMISSIBLE IN EVIDENCE.
The opinion of a witness on a matter
requiring special knowledge, skill,
experience, training or education, which he
or she is shown to possess, may be received
in evidence (Sec. 52, Rule 130).
CHARACTER
EVIDENCE
Rules of Evidence
CHARACTER EVIDENCE
IS GENERALLY
NOT ADMISSIBLE.
Evidence of a person’s character or a
trait of character is not admissible
for the purpose of proving action in
conformity therewith on a particular
occasion (Sec. 54, Rule 130).
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2019 Salient Changes
CHARACTER
EVIDENCE
Applicable to Criminal and Civil Cases
IF ADMISSIBLE, TESTIMONY
OR OPINION MAY PROVE
REPUTATION OR
CHARACTER.
In all cases in which evidence of
character or a trait of character of
a person is admissible, proof may
be made by testimony as to
reputation or by testimony in the
form of an opinion. On cross-
examination, inquiry is allowable
into relevant specific instances of
conduct (Sec. 54, Rule 130).
IF IT IS AN ELEMENT OF A
CHARGE, CLAIM OR DEFENSE,
CHARACTER MAY BE PROVED
BY SPECIFIC INSTANCES OF A
PERSON'S CONDUCT.
In cases in which character or a trait
of character of a person is an
essential element of a charge, claim
or defense, proof may also be made
of specific instances of that person’s
conduct. (Sec. 54, Rule 130).
E.D. LERIOS
IBP CEBU
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2019 SALIENT CHANGES
BURDEN OF
PROOF
Rules on Evidence
BURDEN OF
PROOF.
It doesn't shift.
BURDEN OF
EVIDENCE.
It shifts.
EVIDENCE
Burden of evidence is the duty of a
party to present evidence sufficient
to establish or rebut a fact in issue
to establish a prima facie case.
Burden of evidence may shift from
one party to the other in the course
of the proceedings, depending on
the exigencies of the case (Rule 1,
Sec. 131).
E.D. LERIOS
IBP CEBU
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2019 SALIENT CHANGES
Presumptions
RULES OF EVIDENCE
Presumptions in Civil
Actions and Proceedings
TO REBUT OR MEET THE PRESUMPTION
Inconsistent Presumptions
in Civil Actions
WEIGHTIER CONSIDERATIONS OF POLICY
Presumption against an
Accused in Criminal Cases
BASIC FACT MUST BE PROVED
BEYOND REASONABLE DOUBT
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IBP CEBU
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2019 SALIENT CHANGES
PRESENTATION
OF EVIDENCE
Rules on Evidence
CROSS-EXAMINATION
A WITNESS MAY BE CROSS-EXAMINED
ON ANY RELEVANT MATTER
Upon the termination of the direct examination, the witness may
be cross-examined by the adverse party on any relevant matter,
with sufficient fullness and freedom to test his or her accuracy
and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue
(Sec. 6, Rule 132).
IMPEACHMENT
A WITNESS MAY BE IMPEACHED BY
CONTRADICTORY EVIDENCE, PRIOR
INCONSISTENT STATEMENTS,
OR BAD REPUTATION
A witness may be impeached by the party against whom he or she
was called, by contradictory evidence, by evidence that his or her
general reputation for truth, honesty, or integrity is bad, or by
evidence that he or she has made at other times statements
inconsistent with his 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 the record of the judgment, that he
or she has been convicted of an offense (Sec. 11, Rule 132).
E.D. LERIOS
IBP CEBU
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2019 SALIENT CHANGES
PRESENTATION
OF EVIDENCE
Rules on Evidence
IMPEACHMENT BY EVIDENCE
OF CONVICTION
A WITNESS MAY BE IMPEACHED BY EVIDENCE
S/HE'S A CONVICTED CRIMINAL
For the purpose of impeaching a witness, evidence that he or she 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 (Sec. 12, Rul 132).
E.D. LERIOS
IBP CEBU
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Rules of Evidence
AUTHENTICATION &
PROOF OF DOCUMENTS
2019 Salient Changes
CLASSES OF PUBLIC
DOCUMENTS DOCUMENTS
Public documents include:
For the purpose of their
xxx xxx xxx
presentation in evidence,
(c) Documents that are considered
documents are either public or
public documents under treaties and
private. (Sec. 19. Rule 132).
conventions which are in force
between the Philippines and the
country of source;
PROOF OF PROOF OF
PRIVATE PRIVATE
DOCUMENTS DOCUMENTS
Before any private document
offered as authentic is received in b) By evidence of the genuineness
evidence, its due execution and of the signature or handwriting of
authenticity must be proved by any the maker; or c) By other evidence
of the following means: showing its due execution and
a) By anyone who saw the authenticity.
document executed or written;
PROOF OF
OFFICIAL
RECORD
The record of public documents If the office in which the record is kept
referred to in paragraph (a) of is in a foreign country, which is a
Section 19, when admissible for contracting party to a treaty or
any purpose, may be evidenced by convention to which the Philippines is
an official publication thereof or by also a party, or considered a public
a copy attested by the officer document under such treaty or
having the legal custody of the convention pursuant to paragraph (c)
record, or by his or her deputy, and of Section 19 hereof, the certificate or
accompanied, if the record is not its equivalent shall be in the form
kept in the Philippines, with a prescribed by such treaty or convention
certificate that such officer has the subject to reciprocity granted to public
custody (Sec. 24, Rule 132). documents originating from the
Philippines (Sec. 24, Rule 132).
OBJECTION TO OFFER
MUST BE MADE
ORALLY.
Objection Grounds for the Objections
, Your must be specified.
Honor.
Objection to offer of evidence must be
made orally immediately after the
offer is made.
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IBP CEBU
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2019 SALIENT CHANGES
OFFER AND
OBJECTIONS
RULES ON EVIDENCE
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IBP CEBU
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2019 SALIENT CHANGES
WEIGHT AND
SUFFICIENCY OF
EVIDENCE
Rules on Evidence
INFERENCES CANNOT
BE BASED ON OTHER
INFERENCES. WEIGHT OF EXPERT
OPINION, HOW
Circumstantial evidence is sufficient for DETERMINED.
conviction if:
(a) There is more than one circumstance;
In any case where the opinion of an expert
(b) The facts from which the inferences are
witness is received in evidence, the court
derived are proven; and
has a wide latitude of discretion in
(c) The combination of all the circumstances
determining the weight to be given to such
is such as to produce a conviction beyond
opinion, and, for that purpose may consider
reasonable doubt.
the following:
(a) Whether the opinion is based upon (b) Whether it is the product of
sufficient facts or data; reliable principles and methods;
(c) Whether the witness has applied (d) Such other factors as the court
the principles and methods reliably to may deem helpful to make such
the facts of the case; and determination.
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IBP CEBU
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i c e T ips :
Pract
OBJECTIONS
Techniques in Making Objections
Objection
EFFECTIVE WAYS
, Your
Honor. PRACTICE
T U D YTIPS
O F SOBJECTIONS ING
BEFORE EXAMS
INVOKING RULES
OF EVIDENCE
Be alert in invoking the
rules of evidence.
The rules of admission and exclusion of
evidence are not self-operating. They depend
TIMELY OBJECTIONS for their successful operation on
knowledgeable trial counsel who must be alert
to invoke the rules to obtain their benefits. This
Make a timely objection requires not only the exclusionary rules, but
or move to strike. also those procedural rules of evidence which
govern admitting and excluding evidence and
An objection, to be timely, must be made preserving objections.
before the witness answers. The lawyer may
not gamble on the answer and then object if he - Mason Ladd
is disappointed. It is only when he does not
have the opportunity to object before the
witness answers that he may obtain relief
through a motion to strike.
- Philip Tone
KNOWING THE
JUDGE
Know your judge or what
the judge is likely to do.
Knowing the judge involves knowing his
attitude toward procedure and substance.
Politeness is always a good starting point. Allow
the question to be completed before objecting
PRESERVING RIGHTS unless completing the question will itself be
prejudicial. Never address your opponent
ON APPEAL directly. Object to the judge. If the judge is
irritated by argument, limit your objections to
Preserve your right to raise succinct statement of your ground in
evidentiary issues on appeal. understandable language.
- J Curtin
If you are going to object, do it right. Having
learned all possible objections, you need to
know how to make them effectively. While
very few cases are reversed on grounds that
the trial judge erred in admitting evidence,
that is no reason to throw away your right to
raise evidentiary issues on appeal. Also, if you KNOWING YOUR
wait until the answer, it is too late. You must
object when the question is asked unless the WITNESS
answer is too quick for normal response. Try
to be quick on your feet that you can think of Know your witness.
the right ground as you stand.
Witnesses may need to be treated differently at
- J Curtin different times in their testimony. You may
know areas to be more dangerous than others
because of your preparation. An otherwise valid
objection may warn the witness of danger and
keep him from becoming confused. The more
you know about the witness, the better you can
judge whether to object.
- J Curtin
E.D. LERIOS
IBP CEBU
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Objection EFFECTIVE WAYS
, Your
Honor. PRACTICE
T U D YTIPS
O F SOBJECTIONS ING
BEFORE EXAMS
DECIDE WHETHER TO
OBJECT AND HOW TO
OBJECT
Consider the overall effect of the
potential objection.
- JC Conti
E.D. LERIOS
IBP CEBU
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EFFECTIVE WAYS Objection
PRACTICE
O F S T U D YTIPS
ING
, Your
Honor.
JAMES MCELHANEY'S OBJECTION LIST, PART 1
BEFORE EXAMS
RELEVANCE
'Objection, Your Honor. Irrelevant.'
PRIVILEGED
COMMUNICATIONS
'Objection, Your Honor. The question
calls for a privileged communication.'
DOCUMENT RULE
'Objection, Your Honor. The
document is not the original.'
E.D. LERIOS
IBP CEBU
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EFFECTIVE WAYS Objection
PRACTICE
O F S T U D YTIPS
ING
, Your
Honor.
JAMES MCELHANEY'S OBJECTION LIST, PART 2
BEFORE EXAMS
INSUFFICIENT
FOUNDATION
'Objection, Your Honor. Lack of
foundation.'
LEADING
'Objection, Your Honor. Leading.
NARRATIVE
'Objection, Your Honor. The
question calls for a narrative.'
OPINION
'Objection, Your Honor. Calls for a
conclusion or an opinion.'
E.D. LERIOS
IBP CEBU
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EFFECTIVE WAYS Objection
PRACTICE
O F S T U D YTIPS
, Your
ING
JAMES MCELHANEY'S OBJECTION LIST, PART 1
Honor.
BEFORE EXAMS
REPETITION
'Objection, Your Honor. Asked and
answered.'
ASSUMES FACT
NOT IN EVIDENCE
'Objection, Your Honor.' The question
assumes a fact not in evidence.'
MISLEADING
'Objection, Your Honor. The question
is misleading (or confusing,
ambiguous, overbroad, vague,
unintelligible, compound).
E.D. LERIOS
IBP CEBU
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t ic e T i p s :
Prac
CROSS-
EXAMINATION
Techniques in Cross-Examination
AREAS OF
CROSS-EXAMINATION
1 CASE SUPPORT
Bring out information favorable to your
case.
2 LACK OF KNOWLEDGE
Show that the witness has deficient
knowledge of the facts.
3 CREDIBILITY
Impeach the Credibility of the Witness
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IBP CEBU
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AREAS OF
CROSS-EXAMINATION
4 MISTAKEN
RECOLLECTION
Test the capacity of the witness to
accurately recall the events.
5 CONDUCT
Show that the witness' conduct is
inconsistent to what s/he's saying.
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IBP CEBU
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YOUNGER'S
10 COMMANDMENTS OF
CROSS-EXAMINATION
1 BE BRIEF
The cross examiner's purpose is to obtain the
information necessary to support an argument
in summation about the credibility of the
witness. Never more than three arguments.
Two better than three. One best of all.
2 SHORT QUESTIONS,
PLAIN WORDS
For some reason, many lawyers think that the
sign of a good lawyer is the habitual use of
fancy words, long sentences, and elaborate
syntax. Simple words and simple sentences are
not only good style; they are good sense.
E.D. LERIOS
IBP CEBU
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YOUNGER'S
10 COMMANDMENTS OF
CROSS-EXAMINATION
8 AVOID REPETITION
When a lawyer asks a witness on cross-
examination merely to repeat his direct
testimony, all he accomplishes is elevation of
the witness' credibility.
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Techniques for
WITNESS CONTROL
LEAD THE WITNESS.
Ask leading questions. These are questions that suggest the
1
answer to the witness. You can do this by making a statement
of fact and ending with 'Am I correct?,' ‘correct?,’ ‘right?,’ or
‘true?’ You can also do this by the tone or inflection of your
voice, such as, ‘You crossed the street?’ then changing the
intonation of your voice to elicit a ‘yes.’
USE GRADUAL
QUESTIONING
2
Your questions should create a build up to your point. You do
this by little by little, step by step, incremental questions.
Divide your outline into small component topics and achieve a
cross-examination exchange where 80-90% of the time, you're
the one talking while the witness answers you with a mere 'yes'
or 'no.'
4
Avoid the temptation to ask the 'ultimate' question--a
confrontational conclusory question that urges the witness to
explain or argue with you. For example, don't ask this kind of
question: 'In other words, Mr. Witness, you breached your agreement
with the Defendant?' or 'Come on, admit it, you were negligent, am I
right?' Save it for written memorandum or trial brief.
E.D. LERIOS
IBP CEBU
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Techniques for
WITNESS CONTROL
6
Cross-examination is not a mode of discovery. So, avoid fishing
for information in the hope that you'll get lucky; you'll stumble
upon a gem for your case. This is similar to the commandment
that 'never ask a question which you don't know the answers.'
AVOID NEGATIVES IN
CREATING YOUR
QUESTIONS.
8 Don't frame your question using negatives such as 'Isn't it
correct?' or 'Is it not true that...' This type of language confuses
the witnesses and the judge. An affirmative answer could mean
that the statement is 'not correct.' So, frame your questions in a
positive manner such 'Is it correct?' This way a 'yes' answer
means a true yes--the witness agrees with you.
E.D. LERIOS
IBP CEBU
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CROSS-EXAMINATION
BASIC CHECKLIST
Steven Lubet
41
r a c ti c e T i ps
P
IMPEACHMENT
Techniques on Impeaching a Witness
Impeachment
TECHNIQUES
ELICIT HELPFUL FACTS BEFORE
YOU IMPEACH THE WITNESS
Before you focus on destroying the witness’
credibility, examine the possibility of building your
case through the cross-examination of an adverse
witness. A truthful witness may have information
that can help your case. If you’re effective in
achieving this, it can send a more powerful message
to the judge. And it becomes more believable.
IMPEACH ONLY ON SIGNIFICANT
INCONSISTENCIES
You can attack the witness credibility by showing
that he contradicted his own words. If done right, it
has a powerful impact. Your objective here is to
bring out contradictory statements from the
witness--two statements that can damage his
credibility.
IMPEACHMENT DOESN'T
MEAN QUARRELLING WITH
THE WITNESS.
Trying to impeach the credibility of the witness can
be combative. Still, you should avoid a heated
argument just to prove your point. Don't fall into the
trap of losing control both of your emotions and the
witness' responses.
E.D. LERIOS
IBP CEBU
42
Suggested Method of Impeachment
BY PRIOR INCONSISTENT STATEMENTS
(COMMIT-CONFIRM-CONFRONT)
COMMIT TO THE
PRESENT STATEMENT
1 First, ask questions that would make the witness
commit to his or her present statement.
A. Yes.
A. Yes.
A. Yes.
A. Yes.
A. Yes.
A. Yes.
A. Yes.
E.D. LERIOS
IBP CEBU
43
Suggested Method of Impeachment
BY PRIOR INCONSISTENT STATEMENTS
(COMMIT-CONFIRM-CONFRONT)
A. Yes.
A. Yes.
A. Yes.
A. Yes, it is.
A. I signed it. I'm not sure what you mean by under
oath.
A. Ah, yes.
A. Yes.
A. Yes.
E.D. LERIOS
IBP CEBU
44
:
References
atty.edmar.lerios@gmail.com