Legal Technique and Logic - Atty Anfred Panes

Direct Examinations vs. Cross Examination

DIRECT EXAMINATION

 The direct examination or examination-in-chief is one stage in the process

of adducing evidence from witnesses in a court of law.

 Direct examination is the questioning of a witness by the party who called him or her, in a trial.

 Direct examination is usually performed to elicit evidence in support of facts which will satisfy a
required element of a party's claim or defense.

 In direct examination, one is generally prohibited from asking leading questions. This prevents a
lawyer from feeding answers to a favorable witness.
 An exception to this rule occurs if one side has called a witness, but it is either understood, or
becomes clear, that the witness is hostile to the questioner's side of the controversy. The lawyer
may then ask the court to declare the person he or she has called to the stand a hostile witness.
If the court does so, the lawyer may thereafter ask witness leading questions during direct
examination.

***A hostile witness, otherwise known as an adverse witness or an unfavorable witness, is

a witness at trial whose testimony on direct examination is either openly antagonistic or appears
to be contrary to the legal position of the party who called the witness.

 The techniques of direct examination are taught in courses on trial advocacy. Each direct
examination is integrated with the overall case strategy through either a theme and theory or,
with more advanced strategies, a line of effort.

CROSS EXAMINATION (skill & preparation)

 is the interrogation of a witness called by one's opponent.

 It is preceded by direct examination

 and may be followed by a redirect

 Art: When to ask preliminary questions and when to say devastating ones.

 The main purposes of cross-examination are to elicit favorable facts from the witness, or to
impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony.

 Cross-examination frequently produces critical evidence in trials, especially if a witness

contradicts previous testimony.
 Cross-examination is considered an essential component of a jury trial because of the effect it
has on the opinions of the judge and jury.

 It is sometimes referred to as an art form, because of the need for an attorney to know precisely
how to elicit the testimony from the opposing witness that will help, not hinder, their client's
case.

 Typically a cross-examiner must not only be effective at getting the witness to reveal the truth,
but in most cases to reveal confusion as to the facts such as time, dates, people, places, wording
etc.

 More often than not a cross-examiner will also attempt to undermine the credibility of a witness
if he or she will not be perceived to be a bully (such as discrediting a very elderly person or
young child).

 The cross-examiner often needs to discredit a potentially biased or damaging witness in the eyes
of the jury without appearing to be doing so in an unfair way.

 Typically the cross-examiner must appear friendly, talk softly and sincerely to relax the guarded
witness.

 Or on other occasions they may start by being more confrontational, unsettling an already
disturbed witness.

 They typically begin repeating similar basic questions in a variety of different ways to get
different responses, which will then be used against the witness as misstatements of fact later
when the attorney wants to make their point.

 If it is too obvious the questions are too clearly repetitive and making the witness nervous, the
other attorney may accuse the cross examiner of badgering the witness.

 There is a fine line between badgering and getting the witness to restate facts differently that is
typically pursued.

 The less the witness says, and the slower the witness speaks, the more control they can maintain
under the pressure of a crafty opponent. The key for a witness is to understand the facts that
they believe to be the case and not add additional thoughts to those facts, lest they be used to
undermine the testimony. Sticking to the brief known facts is key for the witness, making it
difficult for the cross-examiner to make the witness appear confused, biased or deceitful. The
cross examiner will assume the witness has been told that and begin asking supporting questions
about where the witness was, what time it was, what the witness saw, what they said, and
sooner or later upon asking again the witness may use a different word that will give the
cross-examiner a chance to ask the question again doubtfully and pointedly implying
contradiction. The witness will try typically to explain and clarify, which sometimes reveals
weakness in the witness's statements of fact. Other times the witness is just being truthful but
undermined for the purpose of casting doubt to the jury and or judge.

*** Redirect examination is the trial process by which the party who offered the witness has a
chance to explain or otherwise qualify any damaging or accusing testimony brought out by the
opponent during cross-examination. Redirect examination may question only those areas brought
out on cross-examination and may not stray beyond that boundary.

What is a testimonial evidence?

- Written or oral assertion offered as proof of truth in court. Includes hearsay and testimony.

What is a Judicial Affidavit?

Pre-trial and Pre-trial Conference

Section 1. Pre-trial; mandatory in criminal cases. – In all criminal

cases cognizable by the Sandiganbayan, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal
Trial Court and Municipal Circuit Trial Court, the court shall, after
arraignment and within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused, unless a
shorter period is provided for in special laws or circulars of the
Supreme Court, order a pre-trial conference to consider the following:

(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 matters as will promote a fair and expeditious trial of the criminal and civil aspects of the
case.

WHAT IS THE PURPOSE OF A PRE-TRIAL?

> The purpose is to expedite proceedings

WHEN IS PRE-TRIAL REQUIRED?

> Pre-trial is mandatory in all criminal cases cognizable by the Sandiganbayan, RTC,
MTC and MCTC

WHEN SHOULD IT BE CONDUCTED?

> After arraignment, and within 30 days from the date the court acquires
jurisdiction over the person of the accused
> An exception to the rule is when the accused is under preventive detention. The case shall be
raffled within 3 days. Arraignment shall be done within 10 days after the raffle. Ten days
thereafter, the pre-trial.

WHAT SHOULD THE ORDER FOR PRE-TRIAL CONFERENCE CONTAIN?

1. The presence of the accused and more importantly the offended

party, for purposes of plea bargaining and determination of civil
liability. Remember that plea bargaining isn’t allowed in cases involving violations of
the Dangerous Drugs Act.
2. Referring the matter for preliminary conference to the clerk of court.
3. Warning that evidence not offered during preliminary conference shall be
inadmissible except if because of good cause and under the discretion of the court

WHO SHOULD PRESIDE IN A PRELIMINARY CONFERENCE?

> Clerk of court will preside the preliminary conference

WHAT SHOULD THE CLERK OF COURT DO IN PRESIDING OVER THE PRELIMINARY CONFERENCE?

1. The clerk of court is given a vital role in the speedy disposition of cases
2. He shall serve as the mediator or arbitrator between the accused and offended party for the
two parties to reach a settlement as to the civil liability of the accused
3. He shall serve as mediator between the parties with regard plea bargaining
4. He shall serve as mediator in the stipulation of facts between the accused and offended party
5. He shall oversee the introduction and marking of documentary evidence
6. He shall see that the evidence is genuine and duly executed
7. He shall oversee the conference if there will be any waiver to objections over
admissibility of evidence
8. In case the accused gives a lawful defense, he will indicate that there would
be a modification of the order of trial

N.B
1. A preliminary conference precedes a pre-trial. It is officiated by
the clerk of court. The clerk of court plays a vital role in the speedy disposition
of cases.
2. Often times, there would be no pre-trial anymore but the trial would
commence and the judge would issue the decision for the disposition of the case.
3. The pre-trial conference is conducted for the expeditious disposition of the
case. What happens in the conference is more than what meets the eye.
4. There is now an amendment in the new rules providing for the
parties to talk with each other absent their lawyers. Lawyers
often times are stumbling blocks in the speedy disposition of
cases.
5. In the pre-trial and preliminary conference, there is narrowing of conflict between the
parties. In furtherance of this, the judge is sanctioned to allow the number of witnesses to be
presented, limit the trial days, etc.
6. Remember that any evidence not presented or marked during the pre-trial conference shall not
be admitted during the trial. This is done to make the
presentation of evidence mandatory for the
parties to the case. Additional evidence shall only be allowed if there is good cause
and for furtherance of justice
7. Evidence is genuine and duly executed—in relation to notarial law when the lawyer admits to
the genuineness and due execution of the documentary evidence presented.
8. The preliminary conference is to minimize the things to be discussed during the
pre-trial conference that would be conducted by the judge. After the pre-trial conference, a pre-trial
order shall
be issued. This will serve as the bible for the rest of the proceedings.
9. See the Revised Rules on Pre-trial issued during August 2004.

WHEN WILL THE JUDGE PRESIDE?

> During the pre-trial

Direct Evidence

 Direct evidence is based on a witness’s personal knowledge or observation of a fact.

 If the witness personally saw the defendant stab the victim that is direct evidence; the stabbing
is within the witness’s actual experience. Whether the judge or jury, whose duty is to listen to
the evidence and determine the truth, believes the witness is a separate issue regarding
credibility, but does not change the nature of the testimony as direct evidence.

 Direct evidence has traditionally been described as eye witness testimony.

 In the modern age photographs, video and audio recordings are also direct evidence.

 The recorded presentation of an event can establish directly that the event took place.

Circumstantial Evidence

 Circumstantial evidence is more complex.

 A witness did not see the stabbing above. The witness did see the defendant go into the house
carrying a knife. The witness heard a scream inside the house and saw the defendant run out,
not carrying the knife. The victim is later found inside with a knife in her back. A reasonable
inference is that the defendant stabbed the victim. Whether that fact is true will determine if the
defendant is guilty.

 Circumstantial evidence is direct evidence of a fact which reasonably infers the existence or
nonexistence of another fact.

 Circumstantial evidence is not direct observation of a fact that is in dispute.

 In the stabbing above, no one saw the victim stabbed, and the defendant said he did not do it,
but the eye witness saw things that lead to the conclusion that the man running out of the house
stabbed the victim.

 The witness’ testimony is circumstantial evidence of the defendant’s guilt.

 Circumstantial evidence is a collection of facts that, when considered together, can be used to
infer a conclusion about something unknown.

 Circumstantial evidence is used to support a theory of a sequence of events.

 The sum total of multiple pieces of corroborating evidence, each piece being circumstantial
alone, build an argument to support how a particular event happened.

 In civil and criminal investigations, corroboration is often supplied by one or more expert
witnesses who provide forensic evidence.