THE RULES OF CROSS-EXAMINATION

A Zombieland Approach in Questioning a Witness

Prepared by: Prosecutor Christian P. Castro

PRELIMINARY MATTERS

A. Who is a witness?

A witness is a person who testifies in a cause or gives evidence before a judicial

tribunal.1

B. Section 3, Rule 132 of the Revised Rules on Evidence (RRE)

A witness must answer questions, although his or her answer may tend to
establish a claim against him or her. However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting

questions, and from harsh or insulting demeanor;

(2) Not to be detained longer than the interests of justice require;

(3) Not to be examined except only as to matters pertinent to the

issue;

(4) Not to give an answer which will tend to subject him or her to
a penalty for an offense unless otherwise provided by law; or

(5) Not to give an answer which will tend to degrade his or

her reputation, unless it be to the very fact at issue or to a fact
from which the fact in issue would be presumed. But a witness
must answer to the fact of his or her previous final conviction for
an offense.

C. Section 6, Rule 132 of RRE

Cross-examination; its purpose and extent. - 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. (6a)

xxx xxx xxx

Cross-examination is the examination of a witness

upon a trial or hearing, or upon taking a deposition, by
the party opposed to the one who produced him, upon
his evidence given in chief, to test its truth, to further
develop it, or for other purposes.2

1
Francisco, Basic Evidence, 3rd Edition, 2017, page 387, citing 58 Am. Jur. 24 cited in Insights on Evidence by Chief
Justice Diosdado M. Peralta and Justice Eduardo B. Peralta, Jr., 2020 Edition, page 272.
2
Black’s Law Dictionary, Revised 4th Edition, page 450 cited in Evidence Explained Redux by Dean Jess Zachael
Espejo, 2022 Edition, page 881.
 D. What is the function of cross-examination?

Republic v. Sandiganbayan
G.R. No. 212436, October 2, 2019

The Court's pronouncement in Republic v.

3
Sandiganbayan, while principally adjudicating on the right to cross-
examination in relation to a former testimony or deposition, is
nevertheless instructive on when substantial identity or identity of
interest between parties satisfies the requirement for the opportunity to
cross-examine:

The function of cross-examination is to test the

truthfulness of the statements of a witness made on
direct examination. The opportunity for cross-
examination has been regarded as an essential
safeguard of the accuracy and completeness of a
testimony. In civil cases, the right of cross-examination
is absolute, and is not a mere privilege of the party
against whom a witness may be called. This right is
available, of course, at the taking of depositions, as well
as on the examination of witnesses at the trial. The
principal justification for the general exclusion of
hearsay statements and for the admission, as an
exception to the hearsay rule, of reported testimony
taken at a former hearing where the present adversary
was afforded the opportunity to cross-examine, is
based on the premise that the opportunity of cross-
examination is an essential safeguard against
falsehoods and frauds.

xxx xxx xxx

Cross-examination therefore serves the following purposes:

1. To impeach the credibility of the testimony;

2. To impeach the credibility of the witness;
3. To elicit admissions; and
4. To clarify certain matters.4

Wrottesly, reduced the objects of cross-examination into three, namely: (1) elicit
something in your favor; (2) to weaken the force of what the witness has said against you;
and (3) to show from his present demeanor or from his past life that he is unworthy of
belief, and thus weaken or destroy the effect of his testimony.5

Surely, a person who has been threatened with a weapon will definitely remember
what was used on him on her, especially in cases where a person is threatened to do
something against his or her will, more so in the heinous crime of rape. Testimonial
evidence, to be believed, must come not only from the mouth of a credible witness, but
must also be credible, reasonable, and in accord with human experience. A credible

3
678 Phil. 358 (2011).
4
Evidence Explained Redux by Dean Jess Zachael B. Espejo, 2022 Edition, page 881.
5
Trends Trial Technique by Dakila F. Castro citing Wrottesly, The Examination of Witnesses in Court 78 (2d ed.
1931) which was cited in in Remedial Law, Proceedings of the Institute on Remedial Law Revisited III – 1979, page
35, U.P.Law Center, Edited by Celestino Miranda.
witness must, therefore, be able to narrate a convincing and logical story. In this case,
the weapon disappeared from the narrative without any logical explanation. Such
omission leads us to conclude that the "weapon" was contrived by complainant to give
color to her claim that she was threatened by appellant (People v. Raymundo Rapiz, G.R.
No. 240662, September 16, 2020 citing Sps. De Leon v. Bank of the Philippine
Islands, 721 Phil. 839, 850 [2013]).

Assuming there was no evil intent, the hard facts indicate that Milo acted without due
care and prudence as regards the circumstances before him. Milo’s supposed
unconscious punching of the victim amounts to a negligent act absent evidence that he
was totally deprived of his powers of observation and mental faculties. The Court cannot
accept Milo's kind of tale which is highly contrary to common human experience.
Obviously, it is preposterous to believe that the initial reaction of person who was
suddenly awakened is to indiscriminately throw punches. It is a legal truism that evidence
to be considered must not only proceed from the mouth of a credible witness, but must
be credible in itself. No better test has yet been found to measure the value of a witness'
testimony than its conformity to the knowledge and common experience of
mankind. Taken together, the defense of accident must be struck down. Milo failed to
adduce any circumstance which may relieve him of responsibility other than his bare claim
that the killing was accidental (People v. Milo Leocadio, G.R. No. 227396. February 22,
2023 citing People v. Baquiran, 126 Phil. 807, 810 (1967) [Per J. Castro, En Banc]. See
also People v. Magpantay, 348 Phil. 107, 114-115 (1998) [Per J. Melo, Third Division].

We likewise cannot acquiesce to the credibility accorded to the prosecution

witnesses by the courts a quo. Contrary to the lower courts’ ruling, the inconsistencies in
the statements of the prosecution witnesses are substantial, not trivial. To recall, PO1
Antonio, PO1 Jiro and PO1 Fernandez stated in their Pinagsamang Sinumpaang
Salaysay that a civilian asset arrived at the police station on July 21, 2002, and informed
them that one "alias Erlinda" was selling illegal drugs on Manahan Street, Barangay
Burgos, Rodriguez, Rizal. PO1 Antonio reiterated this fact when he testified in court that
a civilian informant arrived at the police station on July 21, 2002 and told them that a
woman was openly selling dangerous drugs on Manggahan Street, Barangay Burgos,
Montalban, Rizal. PO1 Jiro, however, changed his story in court and testified that the
confidential informant called the police and informed then that one "alias Erlinda" was
selling illegal drugs.

We are at a loss how PO1 Antonio and PO1 Jiro could have given different accounts
regarding how the confidential asset informed them of the appellant’s illegal activities
when both of them were present at the police station on July 21, 2002. What baffles us
even more is why PO1 Jiro’s gave conflicting statements in his joint affidavit and in his
court testimony. To us, the conflicting statements and declarations of PO1 Antonio and
PO1 Jiro destroyed their credibility; it made their testimonies unreliable. Evidence to be
believed must not only proceed from the mouth of a credible witness but it must be
credible in itself, such as the common experience and observation of mankind can
approve as probable under the circumstances (People v. Erlinda Capuno, G.R. No.
185715, January 19, 2011).

E. Views about Cross-Examination

But the most important and decisive weapon in the winning of a case is the cross-
examination. I cannot over-emphasize the fact that the cross-examination must be
prepared in advance. Write down the probable testimony of the witnesses. Write down
the points where you will have to cross-examine him extensively and decisively. Write
down the questions in a logical order on each point. You have to use a lot of common
sense, based on your thorough analysis of the facts of the case, to be able to make a
successful cross-examination.
 To me, this is still the most fascinating part of trial work. Most often, the success
of the case and the judgment on the ability of a lawyer depend on his ability as a cross-
examiner (Evidence for a Successful Defense by Former Senator Estanislao A.
Fernandez, U.P. College of Law, Institute on Trial Techniques and Procedures, February
10, 1967).

xxx xxx xxx

But the judges here can tell you that cross-examination is grossly overrated. It is
only in exceptional cases that a case is won or lost by cross-examination. Ninety-five
percent of cases are won or lost by the strength of your direct evidence and your ability
to present it in a way that convinces the judge. This means that you have to know the
judge, not in the improper way, but you have to know how the judge’s mind works; how
he reasons (Diokno on Trial, Techniques and Ideals of the Filipino Lawyer, The Complete
Guide To Handling a Case in Court, Jose W. Diokno. Edited, Updated and Supplemented
by Jose Manuel I. Diokno, 2007).

F. English rule or American rule

According to the English rule, a witness once called becomes a witness for all
purposes and may be fully cross-examined upon all matters material to the issue. Cross-
examination is not confined to matters inquired about on direct-examination.

The American rule restricts cross-examination to facts and circumstances stated in

the direct examination of the witness, or to matters connected therewith tending to
contradict or discredit the witness.6

The rule in this jurisdiction follows the American rule.7 Thus, the Rules of Court
provides that: 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 (Section 6, Rule 132
of the RRE).

English rule but follows the American rule in two (2) instances:8

1. Rule 132, Section 13, last paragraph provides:

The unwilling or hostile witness so declared, or the witness

who is an adverse party, may be impeached by the party
presenting him or her in all respects as if he or she had been
called by the adverse party, except by evidence of his or her bad
character. He or she may also be impeached and cross-
examined by the adverse party, but such cross-examination must
only be on the subject matter of his or her examination-in-chief.

2. Rule 115, Section 1(d) states that: To testify as a witness in

his own behalf but subject to cross-examination on matters
covered by direct examination. His silence shall not in any
manner prejudice him.

6
Jones on Evidence in Civil Cases (4th Edition), page 1515 cited in Basic Evidence by Ricardo J. Francisco, Revised
and Updated by Atty. Raymundo T. Francisco, 2022, Fourth Edition, pages 611 to 612.
7
Basic Evidence by Ricardo J. Francisco, Revised and Updated by Atty. Raymundo T. Francisco, 2022, Fourth
Edition, page 611
8
Evidence Explained Redux by Dean Jess Zachael B. Espejo, 2022 Edition, page 883.
 THE RULES OF CROSS-EXAMINATION

RULE # 1 MASTER THE FACTS OF THE CASE. One of the basic

requirements for proper cross-examination is a complete knowledge of the facts which
the lawyer is seeking to prove.9 With the mastery of the facts, the cross-examiner will be
able to determine whether to cross-examine or not, to detect error in the direct testimony
and to know all of the errors, to know the exact limits of his cross-examination, to
determine the right approach of the witness – friendly or hostile, cautious or bold, easy or
vigorous, and he will know when to prove and when to avoid proving for constructive
testimony.10

RULE # 2 SCRUTINIZE THE WITNESS. During the direct-examination of

opposing witnesses, their appearance, manner, and the subject matter of their testimony
should all be scrutinized. The object is to locate openings for cross-examination, i.e.,
errors in the testimony, the portions of their testimonies on which they hesitate, or how
they qualify their statements, or exhibit confusion.11 One of the greatest mistakes of the
inexperienced trial attorney is his failure to listen attentively to every detail of the direct
examination of the witness he expects to cross-examine. He fails to appreciate that he
must be on the alert during such direct-examination for the weak spot in that witness’
testimony. He must forever watch the witness’ face in an attempt to determine whether
the witness is telling the truth.12

RULE # 3 AVOID EXAMINING A “DE MINIMIS” WITNESS. The right to

cross-examine is not an obligation. A witness who testifies to a purely formal matter or as
to incidental facts which are not in dispute or as to matters which are not damaging to the
theory of the case should not be cross-examined. So, too, a witness who has made a
mess of himself on direct examination and impressed the court unfavorably need not be
cross-examined.13

RULE # 4 START BEING FRIENDLY. Ordinarily, cross-examination should be

commenced in a friendly tone and attitude. Witnesses come to court upon notice of
hearing, summons or subpoena and the court may resent their being subject to hostile
cross-examination or cross-examination directly implying that the witness is mistaken or
dishonest. Usually such a course of action should be assumed only after testimony has
been elicited which may be expected clearly to satisfy the court that the witness is
dishonest.14

Ordinarily, a friendly approach that shows all over your face openly indicating to
the witness that you consider him to be an honest man is effective in enabling you to draw
from him the desired answers to your questions. Since the witness is relaxed and does
not feel threatened he would have the tendency to answer questions freely and frankly.15

9
Trial Technique by Irving Goldstein, Chicago, Callaghan and Company, 1935, page 494.
10
How to Conduct An Effective Cross-Examination by Atty. Norberto J. Quisumbing written in Law Practice for the
Young Lawyer, Proceedings of the Fourth Advanced Course for Junior Lawyers -1975, Edited by Enrique P. Syquia,
1976, U.P. Law Center.
11
supra
12
Trial Technique by Irving Goldstein, Chicago, Callaghan and Company, 1935, page 495.
13
supra
14
supra citing GALLAGHER.
15
Trial Technique by Dakila F. Castro cited in Trends in Remedial Law, Proceedings of the Institute on Remedial Law
Revisited III – 1979, page 42, U.P. Law Center, Edited by Celestino Miranda.
RULE # 5 KNOW THY PURPOSE. Counsel should know the matter of his cross-
examination, his purpose, his materials and the sequence of his cross-examination.16

RULE # 6 BE FAIR AT ALL TIMES. Counsel should be fair at all times, never
giving cause for suspicion in his reference to exhibits or to the witness’ former testimony
or in the form of his questions or any implication that his questions may convey.17

RULE # 7 AVOID REPETITION OF DIRECT-EXAMINATION. Generally,

counsel should avoid the mere repetition of direct testimony by asking virtually the same
questions asked on direct-examination which leads only to emphasizing such direct
testimony.18

The party cross-examining may ask the witness to repeat what he has testified to
upon a particular point in his direct examination, for the purpose not only of testing the
recollection of the witness, but of ascertaining whether he makes a statement at variance
with what he testified to in chief. But it would not be permissible for an attorney to pass
throughout the whole of the direct-examination and ask the witness to repeat it (Zucker v.
Karpeles, 88 Mich. 424, 50 N.W. 373).19

RULE # 8 STOP ECHOING THE ANSWER OF THE WITNESS. Repeating

the witness’ answer in questions on cross-examination should also be avoided. Questions
as “Isn’t it a fact that, etc.” and “Do you want us to understand, etc.” should be avoided
as they merely give the witness an opportunity to flatly contradict the testimony of one’s
own witnesses.20

RULE # 9 MOVE ON UPON HEARING AN ADMISSION. When a witness

has given an admission on a matter of any consequence, counsel should accept the
admission and pass on to another matter. One admission is as allegedly good as a
hundred. Pressing the witness further might tend to uncover circumstances explaining
away the satisfactory answer.21

RULE # 10 CONTROL THE WITNESS. Counsel must keep control of the

cross-examination and not permit the examination to drift into a field in which he is
inadequately prepared. Talkative witnesses must be restrained but not by counsel
interrupting the witness in the midst of his answers and thus giving the impression that
counsel is afraid to have the court know the entire truth. Narrow leading questions should
be asked to such a witness and non-responsive answers should be caused to be stricken
out. Anent an invasive witness, it is sounder strategy to give the witness every opportunity
for continued evasion so that his dishonesty becomes apparent.22

RULE # 11 NEVER PROPOUND A QUESTION THE ANSWER YOU

DON’T KNOW. Certainly, no cross-examiner should ask a critical question unless he
is reasonably sure of the answer.23 To be exact, it has been frequently stated by leading
trial lawyers that no question should ever be asked unless the lawyer knows just what the

16
supra
17
supra
18
supra
19
Cited in Basic Evidence by Ricardo J. Francisco, Revised and Updated by Atty. Raymundo T. Francisco, 2022,
Fourth Edition, page 614.
20
supra
21
supra
22
supra
23
supra
answer will be. A blind, haphazard, cross-examination without a previously planned
objective will usually result in more harm than good. The primary purpose of cross-
examination should forever be kept uppermost in mind, and admissions should be sought
that will tend to corroborate the lawyer’s theory of the case.24

A lawyer should never ask a witness on cross-examination a question unless in

the first place he knew what the answer would be, or in the second place he didn’t care.25

RULE # 12 HIDE YOUR OBJECTIVE. To derive the greatest benefit from a

cross-examination, the purpose of the cross-examiner must always be hidden from the
witness. Just as soon as the witness understands the answer that the lawyer actually is
seeking, he will immediately attempt to avoid the trap planned for him. Questions should
be asked in a casual manner as though the answers are of no particular importance so
as not to arouse the suspicion of the witnesses. In most instances, a favorable answer
may be obtained by indicating in the manner and question the opposite of the real answer
that is desired. Some witnesses under cross-examination will always answer just contrary
to whatever they feel the cross-examiner desires.26

RULE # 13 STOP THE BULLYING. The bullying manner of the old-time cross-
examiner is now entirely obsolete. It has been said that an attitude of fair play and
gentlemanly conduct is necessary to secure a favorable verdict.27

The witness has the right to be protected from irrelevant, improper, or insulting
questions and from harsh or insulting demeanor. This protection is afforded by the court
when it sustains a proper and timely objection by proponent’s counsel and orders his
opponent to desist from badgering the witness.28

Too many lawyers feel that the first duty of the cross-examiner is to badger and
verbally assault the adverse witness, raise their voices, shoot their questions in a rapid-
fire fashion. Brow-beating the witness could blow up in the face of the examiner. A witness
who is subjected to a savage attack would put up a wall around him to resist the assault
or stand pat on his ground and give no inch of it, so that if you finally get anything from
him it will be due to pure terror on his part or good luck on yours.29

Rule on Examination of a Child Witness

Section 18. Approaching the witness. - The court may prohibit a counsel from
approaching a child if it appears that the child is fearful of or intimidated by the counsel.

Section 19. Mode of questioning. - The court shall exercise control over the
questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that
questions are stated in a form appropriate to the developmental level of the child, (3)
protect children from harassment or undue embarrassment, and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.

24
Trial Technique by Irving Goldstein, Chicago, Callaghan and Company, 1935, page 496.
25
Trial Technique and Practice in Philippine Courts by Judge Hilarion U. Jarencio, 1982, page 171 citing David
Graham.
26
Trial Technique by Irving Goldstein, Chicago, Callaghan and Company, 1935, page 496.
27
supra at 495-496
28
Evidence Explained Redux by Dean Jess Zachael B. Espejo, 2022 Edition, page 871.
29
Trial Technique by Dakila F. Castro cited in Trends in Remedial Law, Proceedings of the Institute on Remedial Law
Revisited III – 1979, page 41, U.P. Law Center, Edited by Celestino Miranda.
 Lee v. Court of Appeals
G.R. No. 177861, July 13, 2010

Taking in mind the ultimate purpose of the Lee-Keh children’s

action, obviously, they would want Tiu to testify or admit that she is the
mother of Lee’s other children, including petitioner Emma Lee. Keh
had died and so could not give testimony that Lee’s other children were
not hers. The Lee-Keh children have, therefore, a legitimate reason for
seeking Tiu’s testimony and, normally, the RTC cannot deprive them
of their right to compel the attendance of such a material witness.

But petitioner Emma Lee raises two other objections to

requiring Tiu to come to court and testify: a) considering her advance
age, testifying in court would subject her to harsh physical and
emotional stresses; and b) it would violate her parental right not to be
compelled to testify against her stepdaughter.

1. Regarding the physical and emotional punishment

that would be inflicted on Tiu if she were compelled at her
age and condition to come to court to testify, petitioner
Emma Lee must establish this claim to the satisfaction of
the trial court. About five years have passed from the time
the Lee-Keh children sought the issuance of a subpoena for
Tiu to appear before the trial court. The RTC would have to
update itself and determine if Tiu’s current physical
condition makes her fit to undergo the ordeal of coming to
court and being questioned. If she is fit, she must obey the
subpoena issued to her.

Tiu has no need to worry that the oral examination

might subject her to badgering by adverse counsel. The trial
court’s duty is to protect every witness against oppressive
behavior of an examiner and this is especially true where
the witness is of advanced age.

xxx xxx xxx

RULE # 14 AVOID THE WHYS AND HOWS. Any question, which is so broad
in its scope as to permit a witness to explain too much, will prove detrimental. Such
questions as “why,” “how do you explain,” “how did it happen,” etc., will usually result in
harm to the case unless the lawyer is in a position to refute the answer absolutely.30

RULE # 15 MAKE IT BIG. It is a great strategy to make one or two big points and
to stop there rather than to take a chance on nullifying the good effect of such cross-
examination by continuing on endlessly. If the one or two big points made have been
sufficient to either disprove the version of the witness or to discredit him in the eyes of the
judge, it is greatly to be desired to end at that point.31

RULE # 16 USE ONE TO JETTISON THE OTHER. An effective method of

discrediting the story of one witness is by cross-examining another witness and securing
admissions from the second witness which refutes the story of the first witness. For

30
Trial Technique by Irving Goldstein, Chicago, Callaghan and Company, 1935, page 504.
31
Trial Technique by Irving Goldstein, Chicago, Callaghan and Company, 1935, page 505.
example, in one case where it was claimed that the plaintiff was incompetent when he
signed and executed a certain deed, a member of the plaintiff’s family testified that in his
opinion the plaintiff was not competent to transact his business affairs. The witness was
turned over for cross-examination which showed that the plaintiff had cared for the real
estate and that his mental condition was such that he knew just what had to be done i.e.,
collecting rents, taking care of the repairs and paying the taxes on the property.32

RULE # 17 DON’T BE ASSUMING. On cross-examination leading but not

misleading, questions are allowed. A “misleading question” is one which assumes facts
not in evidence or that the witness has given testimony which he has not given, or that a
fact exists which he has denied. Misleading questions are not allowed either in direct or
in cross-examination.33

The last paragraph of Section 10, Rule 132 of the RRE provides that a misleading
question is one which assumes as true a fact not yet testified to by the witness, or contrary
to that which he or she has previously stated. It is not allowed. (10a)

Have you left off beating your wife? Is the classic example of a “forked” question,
which makes the witness seem to admit that he did beat his wife, whichever way he
answers.34

Exception: Cross-examination of an expert witness.

On cross-examination of an expert witness, the rule that the

facts assumed in the hypothetical questions should appear to be
supported by some evidence, does not apply. The witness may be
cross-examined as to his opinion upon imaginary facts, not only to test
his skill and experience and the value of his opinion but also his
credibility.35

RULE # 18 NEVER ASK AN EXPERT. Never cross-examine an expert

in his own field. This is a very sound advice and should be borne in mind by every lawyer
dealing with an expert witness. Cornelius suggests that in examining doctors, for
example, the cross-examination should be directed not to the medical aspects of his case
at all, but to other facts which may weaken his testimony. One is perfectly safe in probing
thoroughly as to an expert’s experience and the classes of cases he has been handling.36

No question should be put to an expert which is in any way so broad as to give him
an opportunity to expatiate upon his own views, and thus afford him an opportunity in his
answer to give his reasons.37

32
Trial Technique by Irving Goldstein, Chicago, Callaghan and Company, 1935, pages 536-539.
33
Trial Technique and Practice in Philippine Courts by Judge Hilarion U. Jarencio, 1982, page 162 citing C.J. Sec. 846
and 70 C.J. 519.
34
Insights on Evidence by Chief Justice Diosdado M. Peralta and Justice Eduardo B. Peralta, Jr., 2020 Edition, page
772 citing 7 Francisco, Vide, page 262 which in turn cites Wigmore on Evidence (Student’s Textbook), 149.
35
Chief Justice Moran’s exposition, 5 Moran, Vide, page 447, citing among other cases West Pratt Coa Co. v. Andrews,
150 Ala. 368 cited in Insights on Evidence by Chief Justice Diosdado M. Peralta and Justice Eduardo B. Peralta, Jr.,
2020 Edition, pages 806 to 807.
36
Cornelius, Cross-Examination of Witness, page 192 cited in Trial Technique and Practice in Philippine Courts by
Judge Hilarion U. Jarencio, 1982, page 175.
37
Wellman, The Art of Cross-Examination, pages 79 to 80, cited in Trial Technique and Practice in Philippine Courts
by Judge Hilarion U. Jarencio, 1982, page 174.
 RULE # 19 ASK THE WITNESS TO DEMONSTRATE. Witness may
be asked to physically demonstrate matters testified to in chief.38 Defendant, having
testified that the gun was unintentionally discharged, may be required on cross-
examination to take the gun and show how he used and handled it on the occasion in
question (State v. Thomas, 39 Utah 208, 117 Pac. 58); for it may be proper to ask a
witness to physically demonstrate or illustrate matters as to which he has testified in
chief.39

RULE # 20 KNOW THE DANGERS OF UNNECESSARY CROSS.

The golden rule to follow is: “When in doubt, don’t.” Indeed, more harm than good has
often been done to cases by improper and repetitious cross-examination. So, unless you
feel that you can accomplish a desired objective, do not cross examine the witness.

The danger of unnecessary cross-examination is illustrated by a case cited by

Wellman. A witness to the will, who had been a stenographer in the office of the lawyer,
testified that in her opinion the testator, when he signed the will, was perfectly sane. The
lawyer, seeing the witness extremely youthful and inexperienced and concluding that she
probably had never seen an insane person, asked:

Question: Have you ever in your life seen any one who it
was claimed was insane?

Answer: I guess I have – I have been employed in an

insane asylum for the last two years as an attendant.

But with all the preparation you have done in advance you should be able to decide
whether to cross-examine the witness or not. You have forecasted more or less what
facts will be presented by your opponent, and if you did your homework, nine out of ten
you were correct in your prophecy.40

RULE # 21 HIGHLIGHT THE IMPROBABLE. While the fundamental

rule of cross-examination restricts the examination to facts which have been stated in the
direct examination, the examiner is allowed to ask questions tending to show the
improbability of statements made in the examination in chief.

Example:

A witness who claimed to have been robbed of a large amount of money, may be
asked questions on cross-examination showing that he was heavily indebted and
embarrassed financially and that he had made statements largely exaggerating his
assets.41

RULE # 22 DITCH THE SARCASM. Another fault common among

lawyers is that of being sarcastic. Sarcasm is a tool with cutting edges which sometimes
cuts the user more than the witness. It is a boomerang which starts off as truly aimed to
demolish the opponent only to return and often knock the thrower out of the contest. The

38
Basic Evidence by Ricardo J. Francisco, Revised and Updated by Atty. Raymundo T. Francisco, 2022, Fourth
Edition, page 614.
39
2 Nichols Applied Evidence, p. 1573 cited in Basic Evidence by Ricardo J. Francisco, Revised and Updated by Atty.
Raymundo T. Francisco, 2022, Fourth Edition, page 614.
40
Trial Technique by Dakila F. Castro cited in Trends in Remedial Law, Proceedings of the Institute on Remedial Law
Revisited III – 1979, page 38, U.P. Law Center, Edited by Celestino Miranda.
41
Trial Technique by Dakila F. Castro citing 3 Jones and 4 Gard, Trends in Remedial Law, Proceedings of the
Institute on Remedial Law Revisited III – 1979, page 39, U.P. Law Center, Edited by Celestino Miranda.
employment may give enjoyment to the user; but sarcastic people, including lawyers, are
seldom admired for themselves.42

Senator Francisco relates an incident in a criminal case involving that of a carabao,

in which the private complainant, the owner of the stolen animal, was cross-eyed. The
lawyer for the defense on the other hand was pock-marked. After asking the witness some
preliminary questions, the lawyer asked:

Question: Now, tell me, was the carabao cross-eyed?

Answer: (the witness smilingly retorted) No, but it was

“bulutongo” (pock-marked).43

RULE # 23 LAY THE PREDICATE. In People v. Relucio, No. L-38790,

November 9, 1978, 86 SCRA 227, 288, the Supreme Court held:

It is a basic postulate in the law on evidence that every witness

is presumed to be truthful and perjury is not to be readily inferred
just because apparent inconsistencies are evinced in parts of his
testimony. Every effort to reconcile the conflicting points should first
be exerted before any adverse conclusion can be made therefrom.
These considerations lie at the base of the familiar rule requiring the
laying of a predicate, which i[n] essence means simply that it is the
duty of a party trying to impugn the testimony of a witness by means
of prior or , for that matter, subsequent inconsistent statements,
whether oral or in writing, to give the witness a chance to reconcile
his conflicting declarations, such that it is only when no reasonable
explanation is given by him that he should be deemed impeached.
(Underscoring supplied)

More specifically on the kind of weapon used by appellant to

threaten AAA, AAA's claims bearing thereon are not necessarily
conflicting. AAA corrected herself by pointing out that aside from the
knife, appellant also threatened her with a gun. If the defense
wanted to impeach AAA, it should have followed the procedure laid
down by Rules of Court by laying the predicate. No such effort was
done, however (People v. Nido Garte, G.R. No. 176152, November
25, 2008).

On cross-examination, AAA testified:

Q All these incidents, the accused had a pointed knife?

A Yes, once, sir.
Q How many times?
A 3 times he poked a gun at me.

(TSN, August 11, 2003, pp. 7-8)

Rule 132, Section 14 of the RRE. How witness impeached by

evidence of inconsistent statements. — Before a witness can be
impeached by evidence that he or she has made at other times

42
Trial Technique by Dakila F. Castro citing Cutler, Trends in Remedial Law, Proceedings of the Institute on
Remedial Law Revisited III – 1979, page 41, U.P. Law Center, Edited by Celestino Miranda.
43
Trial Technique by Dakila F. Castro cited in Trends in Remedial Law, Proceedings of the Institute on Remedial Law
Revisited III – 1979, page 42, U.P. Law Center, Edited by Celestino Miranda.
statements inconsistent with his or her present testimony, the
statements must be related to him or her, with the circumstances of
the times and places and the persons present, and he or she must
be asked whether he or she made such statements, and if so,
allowed to explain them. If the statements be in writing, they must
be shown to the witness before any question is put to him or
her concerning them. (13a)

xxx xxx xxx

Although the whole record of the testimony of complainant at the

preliminary examination was offered in evidence by the defense and
admitted by the trial court, complainant cannot now be discredited
through any of her extrajudicial statements which were not brought
to her attention during the trial. Thus, it has been held that
granting arguendo the alleged contradictions, previous statements
cannot serve as bases for impeaching the credibility of a witness
unless his attention was first directed to the discrepancies and he
was then given an opportunity to explain them (People v. Winston
De Guzman, G.R. No. 122740, March 30, 1998; see People v.
Escosura, 82 Phil. 41 (1948).