Pre-Trial

“…A pre-trial, although technically devised to effect a fair compromise and to

shorten proceedings, actually serves two other useful purposes that are not commonly
written about in the books. The first is that by requiring the parties to be present at the pre-
trial, the pre- trial brings our people right into the midst of our judicial proceedings. It gives
them an actual part in the proceedings. It gives them a firsthand view of the trial of how a
judge who has examined the case tries to get the facts and tries to convince the lawyers to
simplify the issues, to admit what is undeniable and, if possible, to come to a settlement.

“…pre-trial is…a part of…discovery. Although it precedes the rules on discovery,

examination of documents, and physical examination in actual fact, all these rules together
with the pre-trial rule are a composite one weapon designed for one purpose and that is to
compel the parties to lay their cards on the table before the trial.”

“In that fashion, we may eliminate one of the most vicious causes of the lack of faith
in the administration of justice which is the belief that lawsuits go to the wealthy party. Why
this belief? Because the wealthy party has more money to get evidence, more money to pay
for a better lawyer.

But if you compel the laying of cards on the table, then that advantage is to a large
measure obviated. In any battle, you equalize the odds when each party knows what
the other party is going to do.”

“Formal discovery is one potential source of information but (it is) rarely the primary
source.”

Informal discovery has 3 basic components:

1. The search for and interviewing of witnesses;

2. The search for documents and other tangible evidence; and

3. The investigation of the scene and the actual instrumentalities involved in the litigated
event.

“The notion that discovery is the best way to learn facts..(is) wrong.

Discovery may be a good way to learn what a witness will say, and...to hold a witness
or a party to a particular version of facts, but it is a very inefficient way to get information.

The suggestion is not to ignore discovery, but rather to stop ignoring informal
methods of investigation.”

“Trolling” is about “learning facts in other ways..nosing about for information.”

Decent trolling requires

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 • The right personal qualities;

• Some simple techniques;

• A little equipment; and

• The proper sources.

Personal Qualities

1. Curiosity

2. Suspicion: That little warning light that sets off a signal even when things don’t
appear wrong, but rather seem “too right.”

3. Understanding:

“Understanding”

“...the gift for finding circumstantial evidence comes from a basic

understanding about the world. It is a fundamental realization that facts do not just exist.
Events do not arise in a vacuum. They have a context, and if you want to prove the facts,
you must look for their context.”

The Right Sources:

Getting information online;

Developing the right contacts:

• Media people;

• Newspaper morgues;

• Reference librarians;

• Techies;

• Business people;

• Public records;

• Experts.

“Your friends and friends of your friends at the newspaper, in the bank, other lawyers,
accountants, business people, doctors, engineers and other professionals “..are your
window to the world.”

The Main Benefit of Trolling:

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 “...You will find a new bias developing (from trolling). Instead of turning to
formal hearing or written demand when you want to learn something, you will ask yourself
whether there is some other way to get this information. When you do that, you will have
the right approach.”

“Discovery” has two distinct meanings…

To compel disclosure of facts in order to prepare for trial:

To preserve or “perpetuate” the testimony of a witness:

The two are different…

Compelled disclosure:

Usually used against adverse party or adverse party’s witnesses;

Conditional examination:

For your own witness/es.

DISCOVERY IN CRIMINAL CASES

Governed by—

• The Rules of Court; and

• The Guidelines in the Conduct of Pre-Trial and Use of Deposition-Discovery

Measures

 A.M. No. 03-1-09-SC.

DISCOVERY IN CRIMINAL CASES

Production or Inspection of Material Evidence in Possession of Prosecution

• Rule 116, sec. 10.

Mental Examination

• Rule 116, sec. 11.

Examination of Defense Witness before Trial

• Rule 119, secs. 12 & 13.

Examination of Prosecution Witness before Trial

• Rule 119, sec. 15.

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 Production or Inspection of Material Evidence in Possession of Prosecution (Sec. 10, Rule
116)

 Procedural requirements:

 Motion;

 Good cause;

 Notice to the parties;

 To prevent surprise, suppression or alteration.

 Who can be compelled?

“The Court may order the Prosecution…”

Query: Can the court also order the defense to disclose their evidence?

 Can the court compel the defense to disclose its evidence?

 Our courts have not adopted the “Brady doctrine” that allows discovery of defense
evidence.

 But under the Guidelines in the Conduct of Pre-Trial and Use of Discovery-Deposition
Measures, “no evidence shall be allowed to be presented and offered during the trial
other than those identified and marked during the pre-trial except when allowed by
the court for good cause shown.”

 Take note…

 Under the Guidelines, the judge must examine the information and its supporting
documents very closely…and may inquire into the defense/s of the accused.

 Under R.A. 8493, the defense is expressly required to disclose whether it is invoking
a negative or an affirmative defense.

8. Disclosure of defenses of alibi, insanity, self-defense, exercise of public authority

and justifying or exempting circumstances [to determine if a reverse trial should be
ordered].

 Section 7, 2nd par., R.A. 8493

Section 7. XXX [2ND par.] If the accused pleads not guilty to the crime
charged, he/she shall state whether he/she interposes a negative or affirmative defense. A
negative defense shall require the prosecution to prove the guilt of the accused beyond

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reasonable doubt, while an affirmative defense may modify the order of trial and require
the accused to prove such defense by clear and convincing evidence.

Reverse trial…

If the accused invokes insanity, self-defense, exercise of public authority or other justifying
or exempting circumstances, the prosecution can move for a reverse trial.

A reverse trial can save a lot of time, effort and stress; and allow the court to use its meager
resources on other cases.

What can be compelled by way of a motion for production?

The prosecution can be compelled to produce and permit inspection, copying or

photographing of:

Any written statement of complainant or other witnesses in any investigation of the

offense conducted by the prosecution or investigating officers; and

 Any documents, photographs, objects or tangible things

 Not privileged;

 Which constitute or contain evidence material to any matter involved

in the case; and

 Which are in the possession or control of the prosecution, police or

other law investigating agencies.

The first requisite is the relation between the defendant and his counsel… the
defendant must be able to confer coherently with his counsel.

The second is the relation of the defendant vis-a-vis the court proceedings, i.e., that
he must have a rational as well as a factual understanding of the proceedings.

 Examination of Prosecution Witnesses before Trial (Sec. 15, R119)

 When it satisfactorily appears that a witness for the prosecution is too sick or infirm
to appear at the trial as directed by the order of the court, or has to leave the
Philippines with no definite date of returning, he may forthwith be conditionally
examined before the court where the case is pending.

 Examination of Prosecution Witnesses Before Trial

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  Such examination, in the presence of the accused, or in his absence after reasonable
notice to attend the examination has been served on him, shall be conducted in the
same manner as an examination at the trial.

 Failure or refusal of the accused to attend the examination after notice shall be
considered a waiver.

 The statement taken may be admitted in behalf of or against the accused.

 Application for Examination of Defense Witnesses before Trial

 Section 12, Rule 119: When the accused has been held to answer for an offense, he
may, on motion and with notice to the other parties, have witnesses conditionally
examined in his behalf.

 The motion shall state:

(a) the name and residence of the witness;

(b) the substance of his testimony; and

 Application for Examination of Defense Witness before Trial

(c) that the witness is—

 Too sick or infirm as to afford reasonable ground for believing

that he will not be able to attend the trial, or

 Resides more than one hundred (100) kilometers from the

place of trial and has no means to attend the same, or

 That other similar circumstances exist that would make him

unavailable or prevent him from attending the trial.

The motion should be supported by an affidavit of the accused and such other
evidence as the court may require.

 Section 13. Examination of defense witness; how made.

 If the court is satisfied that the examination of a witness for the accused is
necessary, the court will set the date, time and place of the examination.

A copy of the order for the examination should be served on the prosecutor at least
three (3) days before the scheduled examination.

 A written record of the testimony must be taken.

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  The examination should be taken before a judge. If that is not practicable, the judge
may designate a member of the Bar in good standing.

 If the order is made by a court of superior jurisdiction, it may direct that the
examination be conducted before the designated inferior court.

 The examination should proceed in the absence of the prosecutor if s/he was duly
notified of the hearing.

 Discovery in Civil Cases

1. Depositions.
2. Interrogatories to Parties.
3. Requests for Admission.
4. Motion for Production/Inspection.
5. Physical or Mental Examination.
deposition. The taking of testimony from a witness not in open court but under oath
and in the presence of a stenographer... Depositions serve various purposes: harassing
opposing parties, training junior lawyers, allowing the defending lawyers to take naps with
the meter running, and recording the witness’s testimony before he forgets...

 Depositions

 2 Types:

• Oral depositions

• Written depositions

 Main Features of Oral Depositions

 Any person may be deposed, not just a party-litigant.

 All parties to the case must be notified.

 Before the issues are joined, leave of court is required.

 Conducted by examination and cross-examination.

 Objections may be made, but are not immediately ruled upon.

 Written Depositions or “Depositions by Written Interrogatories”

Any person may be deposed by written interrogatories.

Leave of court is needed if done before the answer is served.

Interrogatories and cross-interrogatories in lieu of direct and cross-examination.

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 Objections.

 The Limitations of Depositions

Cannot depose, before the filing of the answer, without leave of court (Sec. 1, Rule 23).

Cannot inquire into privileged information (Sec. 2, Rule 23).

Cannot conduct examination—

In bad faith or

In such manner as unreasonably to annoy, embarrass or oppress the

deponent or party (Sec. 18 and 28, Rule 23);

 Interrogatories to Parties:

A party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court or a deposition pending appeal unless allowed
by the court for good cause shown and to prevent a failure of justice. [Sec. 6, Rule 25]

 The Limitations of Interrogatories

o Applies only to adverse parties.

o Can limit its scope by objections.

o Specific grounds/limitations not specified.

o Can’t serve more than 1 set of interrogatories on the same party.

o Requests for Admission

A party who fails to file and serve a request for admission on the adverse
party, of material and relevant facts at issue which are, or ought to be, within the latter’s
personal knowledge, will not be permitted to present evidence on such facts, unless allowed
by the court for good cause shown and to prevent a failure of justice. [Sec. 5, Rule 26]

The Limitations of Requests for Admission

 Applies only to adverse parties.

 Cannot avail of until after issues are joined.

 Can limit its scope by objections.

• Specific grounds/limitations not specified.

• REFUSAL TO COMPLY WITH MODES OF DISCOVERY

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 (1) For refusing to answer in a deposition, or refusing to answer an interrogatory: court
may issue an order compelling you to answer and to pay reasonable expenses
incurred in obtaining the order, including attorney’s fees.

 Refusal to comply…

(3) Refusing to be sworn in, or to answer a question after being directed by the court: court
may punish you with contempt of court.

(4) For refusing to obey an order requiring you to answer designated questions, or an
order to produce any document or thing for inspection, copying or photographing, or
to permit entry upon land or other property, or requiring you to submit to physical
or mental examination: the court may make such orders as are just, including:

Refusal to comply…

--that the matter sought to be established will be taken to be established for the
purposes of the action;

--prohibiting the violating party from supporting or opposing designated claims or

defenses, or from introducing designated documents, things or other evidence;

-- striking out pleadings or parts thereof, or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment
by default;

-- In lieu of any of the foregoing, or in addition thereto, the court may ORDER THE ARREST of
any party or agent of a party for disobeying any of such orders (except an order to submit to
a physical or mental examination).

(5) For denying a request for admission of substantial importance without good reason >
court may order you to pay the reasonable expenses incurred in making such proof,
including attorney’s fees.

(6) For willfully failing to attend a deposition after being duly served and notified, or failing
to serve answers to interrogatories to parties, the court, on motion and notice, may:

--strike out all or part of any pleading of that party;

--dismiss the action or proceeding or any part thereof, or enter a judgment by

default;

--and, in its discretion, order him to pay reasonable expenses incurred, including
attorney’s fees.

Scrutinize every allegation of the information and the statements in the affidavits
and other documents which form part of the record of the preliminary investigation

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 and other documents identified and marked as exhibits in determining further
admissions of facts, documents and in particular:

1. The identity of the accused;

2. The court's territorial jurisdiction relative to the offense/s charged;

3. The qualification of expert witness/es;

4. The amount of damages;

5. The genuineness and due execution of documents;

6. The cause of death or injury, in proper cases;

7. Adoption of any evidence presented during the preliminary investigation;

8. Disclosure of defenses of alibi, insanity, self-defense, exercise of public authority

and justifying or exempting circumstances; and

9. Such other matters that would limit the facts in issue.

Reduce into writing all agreements or

admissions made or entered during the pre-trial conference and obtain the signature
of the accused and counsel (otherwise they cannot be used against the accused).

The judge should…

Approve all agreements covering the following matters (referred to in Sec. 1, Rule 118):

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but
interposes a lawful defense; and

(f) such other matters as will promote a fair and expeditious trial of the
criminal and civil aspects of the case. Make sure that all the pre-trial proceedings are
recorded, the transcripts prepared and the minutes signed by the parties and/or their
counsels.

“The One-Day Examination of Witness Rule, that is, a witness has to be fully
examined in one (1) day only, shall be strictly adhered to subject to the courts' discretion

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during trial on whether or not to extend the direct and/or cross-examination for
justifiable reasons.

Offer of Evidence

On the last hearing day allotted for each party, he is required to make his formal
offer of evidence after the presentation of his last witness and the opposing party is
required to immediately interpose his objection thereto. Thereafter, the Judge shall make
the ruling on the offer of evidence in open court. However the judge has the discretion to
allow the offer of evidence in writing in conformity with Section 35, Rule 132.”

The Pre-Trial Order

Within ten days from the termination of the pre-trial, issue a Pre-trial Order setting forth
the:

Actions taken during the pre-trial conference;

Facts stipulated;

Admissions made;

Evidence marked;

Number of witnesses to be presented; and

Schedule of trial.

“The Pre-trial Order shall bind the parties, limit the trial to matters not
disposed of and control the course the action during the trial.”

Sec. 5, R.A. 8493

“After the pre-trial conference, the court shall issue an order reciting the
actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties,
limit the trial to matters not disposed of and control the course of action during the trial,
unless modified by the court to prevent manifest injustice.”

R.A.8493 The Speedy Trial Act of 1998

Mandatory Pre-Trial for all Trial Courts in Criminal Cases…

Section 2. xxx In all cases cognizable by the Municipal Trial Court, Municipal
Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan,
the justice or judge shall, after arraignment, order a pre-trial conference to consider the
following:

(a) Plea bargaining;

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 (b) Stipulation of Facts;
(c) Marking for identification of evidence of parties;
(d) Waiver of objections to admissibility of evidence; and
(e) Such other matters as will promote a fair and expeditious trial.

Requisites of Pre-Trial Agreements

Section 3. Pre-Trial Agreement. - All agreements or admissions made or

entered into during the pre-trial conference shall be reduced to writing and signed by the
accused and counsel, otherwise the same shall not be used in evidence against the accused.

[The court must approve the agreements made by the parties during the pre-trial.]

“The agreement on the plea of the accused to a lesser offense may only be
revised, modified, or annulled by the court when the same is contrary to law, public morals,
or public policy.”

Nonappearance at Pre-Trial Conference by Accused and/or Defense Counsel

Section 4. - Where counsel for the accused or the prosecutor does not
appear at the pre-trial conference and does not offer an acceptable excuse for his/her lack
of cooperation, the pre-trial justice or judge may impose proper sanctions or penalties.

Defense required to disclose negative or affirmative defense

Section 7. XXX [2ND par.] If the accused pleads not guilty to the crime
charged, he/she shall state whether he/she interposes a negative or affirmative defense. A
negative defense shall require the prosecution to prove the guilt of the accused beyond
reasonable doubt, while an affirmative defense may modify the order of trial and require
the accused to prove such defense by clear and convincing evidence.

Section 14. - In any case in which counsel for the accused, the public
prosecution or public attorney:

(a) knowingly allows the case to be set for trial without disclosing the fact that a
necessary witness would be unavailable for trial;

(b) files a motion solely for the purpose of delay which he/she knows is totally
frivolous and without merit;

(c) makes a statement for the purpose of obtaining continuance which he/she knows
to be false and which is material to the granting of a continuance; or

(d) otherwise willfully fails to proceed to trial without justification consistent with
the provisions of this Act, the court may, without prejudice to any appropriate criminal

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and/or administrative charges to be instituted by the proper party against the erring counsel
if and when warranted, punish any such counsel or attorney, as follows:

(1) in the case of a counsel privately retained in connection with the defense of an
accused, by imposing a fine not exceeding; fifty percent (50%) of the compensation to which
he/she is entitled in connection with his/her defense of the accused;

(2) by imposing on any appointed counsel de officio or public prosecutor a fine not
exceeding Ten thousand pesos (10,000.00); and

(3) by denying any defense counsel or public prosecutor the right to practice before
the court considering the case for a period not exceeding thirty (30) days.

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