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Dean Jose Manuel I.

Diokno
A basic right that guarantees
every person his decade in
court.
--Whites Law Dictionary
The cry of a lawyer to stop the
witness from uttering the truth.
Client (accused): victims ex-husband.
Witness: victims widower.
You fairly shook with rage when you came into
this court and saw Mr. Jones, my client?
Yes.
You glowered at him, that is a fair statement,
isnt it?
Yes.
And you hate Mr. Jones because you believe he
killed your wife?
Yes.
And because you were able to live together as
man and wife for only a brief period of time?
Yes. A year, a month, and two weeks.
And I take it you are bereaved?
Yes.
And that you deeply loved your wife?
Yes.
Tell the jury who Billy Faye is.
Billy Faye?
Billy Faye.
My fiancee.
And where does Billy Faye Baxter live?
She lives on my farm, with me.
The farm you inherited from your deceased wife?
Thats right.
How much time elapsed after the death of your wife
before Billy Faye moved in with you at your farm?
I first laid eyes on Billy Faye
Perhaps it was my question and I apologize. How long
was it, after the death of your wife, that Billy Faye
Baxter moved in with you in the farm of yours?
Six months.
You were pretty racked with grief, were you? How
many days after your wifes death did it take for you
to be interested in another woman?
Im still not over it.
All right. Tell me where you met Ms. Billy Faye Baxter.
At the Continental Trailways Station on November 5.
When did Ms. Billy Faye Baxter move into your
house?
The first week of December I believe.
So you would say roughly a month passed in this
romance before the two of you decided to move in
together?
Thats right. If you want to know, it was 14 days.
And you claim that you never met Billy Faye before
you ran into her at a bus station?
I didnt run into her at a bus station. It was a planned
meeting.
Okay, tell me how it was planned.
She is a mail-order bride. She met me through an ad I
placed in Mother Earth News. We corresponded for
approximately a month to six weeks. We phoned
each other. I have some $150 in phone bills.
Well, you could certainly pay those, given what you
inherited from your wife?
(Inaudible answer).
Wait a minute. Did you say Mother Earth News?
Yes.
And your wife was killed June 23rd, only three or
four months before the ad appeared?
Yes.
Let me ask you, are you quite certain that ad
was in October?
I will bring the magazine if you like.
I would like that and you can bring it tomorrow.
Incidentally, how many responses for a wife did
you get from the ad in Mother Earth News?
Between 20 to 30. And it was not for a wife.
It was not for what?
Not for a wife.
For a pen pal?
Whatever.
You did call her a mail-order bride.
Yes, sir.
What did the ad say?
Rural violin maker seeks slim Mother Earth
Type. To the best of my memory now. I will
produce the document.
Seeksdid you say slim?
Yes.
Pretty creative ad for a guy wracked with grief,
isnt it? [Objection]. Let me ask you this: Did
you have something else in mind other than a
pen pal?
I had hopes. My wife was dead. I hoped that
something would develop a year or two down
the road.
Your overweight wife was dead, right?
[Objection]. And I guess things just developed
with your girlfriend a lot faster than you hoped?
Thats right.
Let me suggest that it is only for convenience that
you now tell the jury that you placed that ad with
the idea that something would develop down the
road, so that it would appear to them that you
had a proper mourning period.
No, it is the truth.
xxx

Witness returns the next morning with the ad.


Now according to this, in order to have your ad
in this issue, the September-October issue, you
had to have your ad in before July 11, isnt that
correct?
That is what it says.
Now, your wife died on June 23, 1983, did she
not?
She was killed.
She was killed, yes. No one disputes that. It is
who killed her we are after here. Now sir, was
the date of her death June 23?
Yes.
Did you pay for this ad?
Yes.
And you paid by July 11, only 14 days after the
death of your wife?
Yes.
Isnt it a fair statement, isnt it safe to say, that
you were thinking about having another woman
there living with you at your farm very shortly
after the death of your wife?
No.
Maybe before her death you longed for a slim
Mother Earth type?
Sir, that is a lie.
Yet you placed this ad?
Yes.
Then let me ask again. Werent you looking for
another woman, a slim Mother Earth type to
move in with you?
May I amplify?
Court: You can answer the question.
During that period I was crazy, insane with grief. I
was under the care of a psychologist. I will not
accept rational responsibility for any of my
actions at that time.
So, you would tell this jury that you were just too
crazy to be responsible for what you did?
Yes.
I understand. And you are a man of great
sensitivity?
Yes.
And that you are not the kind of man who would
have the kind of anger it takes to kill. Please take
your time and answer calmly, and I see you are
shaking again.
Yes, I have that kind of anger. I will tell you true.
You could kill, is that what you are telling us?
Yes, I could kill.
******
THE ART OF CROSS- THE TECHNIQUE OF ADVOCACY
EXAMINATION (1951)

Francis Wellman John Munkman, LLB,


barrister-at-law.
A good voice;
Command of words;
Ability to think on ones feet;
Confidence;
Persistence;
Practical judgment;
Experience in handling cases.
The advocate must be able to speak clearly
and distinctly.

Slow enough for the stenographer to catch


what youre saying, but not boring or
monotonic.
Vivid word pictures.

Able to choose the right words, phrase the


right questions and frame the right
arguments at a moments notice.

Preparation is key.
Confidencenot cockiness nor
arrogance.

An air of authority, not superiority.

Alert relaxation.
The judge has to know that youll fight to
the end.

Kowtowing just doesnt work.


The nearer one gets to individual facts,
the less one is guided by general
principles, and the more by the feel of
things.
Practical judgment is the ability to judge
individual situations like scenting a weak
point when cross-examining, selecting the
central issue on which a case is fought, or
judging probabilities.
The law of evidence and procedure.

Professional and judicial ethics.

Logic.

Knowledge of humankind and its affairs.

General principles of law.


Evidence:
Authentication of exhibits;
Best evidence rule;
Hearsay and main exceptionis;
Admissions and confessions;
Admissibility and weight.
Procedure:
Latest rules and jurisprudence.
Knowledge of ordinary human behavior and
of the springs of human action is
fundamental.

The habits and living conditions of all social


grades;
Elementary anatomy;
Commercial accounts;
The workings of machines.
What is required is a firm

grasp of principle.
An advocate cannot allow

himself to be made an
instrument of fraud.
Cross and Theory.

Cross and Objections.

Organizing Your Cross.

Framing the Questions.


Never ask anything thats not related
to your theory of the case.

Prepare your cross around your


theory.
Be aware of the direct relationship between
objections and cross.

The Case of the Falsified Document.


Your road map for cross.

Everythings on one page, no top,


no bottom

You get to see the forest and the


trees
Open-ended vs. Leading Questions.

Questments.

One fact per question.

Ask leading questions (only).


OPEN-ENDED QUESTIONS LEADING QUESTIONS

Who..?
What..? Quest-ments.
When..?
Where..? Statements of fact in
How..? question form.
Why..?
Which..?
A good cross-examiner actually makes
factual assertions and forces the witness
to express assent to these assertions on
the record.
You entered the house through the
backdoor, is that right?

You never mentioned this to anyone, did


you?

The floor of the supermarket was slippery


when you went shopping there on 3 March
2007?
You saw the blue car hitting the red bus at
the busy intersection?
How many facts are there?
You, blue car, red bus, busy,
intersection.
If the witness answers yes which fact is
she affirming? If the witness says no,
which fact is she denying?
Every time we ask an open-ended
question on cross, we relinquish some
control over the witness.
Using non-linear outlining to plan and carry
out your cross-examination.

Do I cross at all?

Some sample cross-examinations.

Impeaching with a PIS.


1. Do I cross at all?

2. If I have to cross, how do I do it to


attain my objective/s of:
Obtaining favourable testimony?
Discrediting unfavourable
testimony?
Cross-examination is vastly overrated.
To me the most important question with
reference to the use of cross-examination
is: When should I not cross-examine?

Jose W. Diokno, Diokno on Trial: Techniques and Ideals of the Filipino Lawyer
(2007).
Generally, I decide this on the basis of
the following:

1. Has the testimony of this witness hurt


my case at all?

If not, I wont cross-examine.


2. Can I demolish the testimony by
other incontrovertible evidence?

If I can, then I wont cross-examine,


but I might ask one or two questions only
to emphasize the crucial point which Ill
later contradict by incontrovertible
evidence.
3. Is he a truthful witness?

If he is a truthful witness, chances are I


will cross-examine him and bring out facts
that the adverse counsel did not expect.
Because if he is a truthful witness, he will
generally answer truthfully. But if he is not
a truthful witness, I will probably not touch
him unless I have something to impeach or
discredit him with.
To destroy the material parts of the
evidence-in-chief.
To weaken the evidence, where it cannot
be destroyed.
To elicit new evidence helpful to your side.
To undermine the witness by showing that he
cannot be trusted to speak the truth, or has
no personal knowledge of the subject of his
testimony.
Lead witness to admit that his/her
testimony was untruthful or mistaken.

Do you still maintain that Cecil is the


illegitimate son of Gladstone?

Nonot now.
Reduce its probative value.

Qualify the inferences that might be drawn


from it.

It is nearly always possible to weaken


evidence.

Circumstantial evidence.
Induce witness to admit that other
explanations are possible.

Mistaken identity.
New evidence thats inconsistent with his
story; and

Positive assertions of facts that can be


disproved.
Aims of cross are clear: destroy, weaken,
elicit favorable evidence, undermine.

But how to do it?

But firsthow NOT to do it.


In general, it is no use going over the story
which has already been told by the
witness.This [will only]make the evidence
stronger.It is necessary to tackle the
witness from a new angle.

Cross-examination need not follow


chronological order, though it ought to follow
some pre-arranged plan.
3 Techniques for Cross:

Confrontation;

Probing; and

Insinuation.
Confronting the witness with a great mass of
damaging facts which he cannot deny and
which are inconsistent with his evidence.

Purpose to destroy or weaken.

Need good ammunition to avail of this


technique.
Firing damaging facts at the witness to break
down his story.

When confronting the witness with facts,


start with the least damaging points and
reserve the most effective to give the
finishing stroke.
Should not be used without strong material,
preferably facts that the witness cannot deny.

The facts should be put out one at a time

As soon as each fact is put and admitted, all


its damaging implications should be drawn
out one by one.
If the witness offers lame explanations, he
should be pinned down to them precisely.

The other facts are then put in turn, in such a


way as to demolish the explanations.

The aim is to force the witness to admit the


falsity of his story; or to make him tongue-
tied; or to involve him in contradictions.
Inquiring thoroughly into the details of
the story to discover flaws.

Can be used to:


Destroy,
Weaken, or
Open up a lead to something new.
Delving into the story as told, to detect and
expose its inherent weaknesses.

The characteristic of probing is to ask such


questions as Who? What? When? Why?
and particularly Why?
Do you usually get up at 2 oclock in the
morning?
No.

What got you up so early (that day)?


I went to a well.

Thirsty?
No.

What brought you to the well?


Saying a few prayers.
Were you ever saying your prayers at the well
before?
No.
It is a long way from your house?
Over a mile.
A dark night, was it not?
It was when I was leaving.
You left in the dark, having got up at 2 oclock in
the morning to say prayers at a well you have
never been to before?
Yes.
The basis of a complex fact, such as
identification, or the conclusions of an expert.

Antecedents.

Consequences.

Collateral circumstancesespecially time,


place, and persons, and their descriptions.
Perhaps the most important technique in
everyday practice.

Building up a different version of the


evidence-in-chief by bringing out new facts
and possibilities.
Gentle insinuation:
Quietly leading the witness on, little by little.

Firm insinuation:
Driving the witness (but here you need good
ammunition).
Usually combined with confrontation.
Usually reserved for hostile witnesses.
To elicit new and helpful evidence on matters
not covered by direct;

To give the story a totally new orientation,


without altering the fundamental facts;

To suggest other possibilities, equally


consistent with the facts.

Useful when cross-examining experts.


You have known the defendant for 15 years?
Yes.
What sort of a man is he?
An intellectual type.
Is he a violent person?
Not at all.
Have you ever seen any signs of a violent
temper or anything like that?
No.
You knew his wife, did you not?
Yes.
And family?
Yes.
How long have you known his wife?
Many years.
Have you seen them often together?
Quite often.
So far as their relations were concerned, were
they happy, so far as you could observe?
Yes.
You have never seen anything to the
contrary?
No.
Would it be fair to say that from your
observation they were a devoted couple?
Yes.
****
You thought you were in danger of arrest?
Yes.
And so you fled the country?
Yes.
Under a false name?
Yes.
Shaved off your mustache?
Yes.
Left off wearing your glasses in public?
Yes.
Took Le Neve with you?
Yes.
Went to Antwerp?
Yes.
Stayed in a hotel there?
Yes.
****
Probing may disclose a weak point which
suggests a line for insinuation; or may lead
a witness to make statements which can be
destroyed by confrontation.

And so on.
Purpose: to take away the foundations of the
evidence by showing that either:
The witness does not know what he is
talking about; or
If he knows the truth, he cant be trusted to
tell it.
Was not there at all.

Too far to see.

Distracted.

Attention on other things.

Victim of undue suggestion or influence.


Previous dishonest conduct.

Bias.

Prior inconsistent statement.

Paid.

Compromised.
Litigation, Vol. 10, No. 2 Winter 1983
A good cross should have a beginning and
an end, should have a purpose, should have a
direction, should tell a story.
Youre a journalist?
Yes.
You believe in freedom of speech?
Yes.
Its an important right?
Yes.
Its guaranteed to us under the Constitution?
Yes.
Why is it an important right?
Because democracy requires it.
Democracy cant work without a free press, can
it?
No.
People of the press think its one of the most
important rights of all.
Yes.
Its as important as freedom of religion?
Yes.
Its as important as not having to testify against
yourself?
Yes.
And you belong to an organization that
protects the First Amendment right?
Yes.
Your organization hires lawyers?
Yes.
These lawyers file briefs in the courts . . .
to protect that right, isnt that true?
Yes.
Litigation, Vol. 10, No. 2 Winter 1983
You need to lay a foundation as to what were
talking about, what makes this right important,
why were all upset about freedom of the press.

You agree that no right can exist without a


corresponding duty?

We have a right, for example, to drive down a


street and you agree that we have a duty not to
run over people carelessly? .
We have a duty not to be reckless?

So it isnt enough to say I have a right. I


must also say I have a duty not to exercise
that right recklessly to injure someone.
Correct?

Now when people of the press preach the


right to freedom of the pressdo you also
preach what your duty is?
Do you know what your duty was on
October 1980 when you wrote the mayors
kickback story?

What exactly did you think your duty was


to the mayor when you wrote that story?
My questions tell a story. They are
properly leading and it really doesnt make
too much damn difference how he answers
the questions, so you are not afraid. . .
Now we turn to the facts.

You had a duty not to be reckless when you


wrote a story that could destroy a man, isnt
that true?

You had a duty not to be reckless, didnt you?


And you knew that the reckless story might
destroy a man, didnt you?

You have attended seminars, workshops, in


which this matter was discussed, havent
you?
And your editors have talked to you about
being careful not to destroy innocent people,
isnt that true?

You can understand that you can kill a man


with words, in effectkill his heart, kill his
reputation, destroy his pride with words just
as easy as you can kill a man with a gun?
You would agree that next to life there is
nothing more valuable to an honourable
man than his reputation?
You knew that at the time, didnt you?

You knew on October 20 that you couldnt be


reckless with your right to a free press
anymore than anyone can be reckless with a
gun?
Now were starting to develop a picture.
Its all right if there are objections. What we
want is to create word pictures, word images,
because of what this thing is all aboutthe
power of the pressas powerful as it is to
shoot somebody with a gun.
Did you ever hold a public office?

Do you believe that all politicians are


dishonest, and therefore open game and that
you can therefore say anything that you want
to say about them?
If I came to you with a rumour that your
editor-in-chief was a crook and took bribes
to write a false story about Mayor
Winslow, you wouldnt write that in your
paper, would you?

You would use your discretion, you would


use your judgment?
You have a duty not to print groundless
rumours, right?

So when Miss Hazelton came to you with


this infamous and dastardly story, she
handed you, so to speak, a loaded gun?
She handed you what you could use to
destroy a man, isnt that right?

And you knew that and understood that,


didnt you?
Now you had the choice, Mr. Reporter, of
either pointing this loaded gun and firing
at Mayor Winslow, did you not?

The choice was up to you, and you chose


to write the story, right?

You chose to point the gun, you chose to


pull the trigger, didnt you?
That is the kind of background I would
have created. With objections it might have
taken all morning. But with objections, by
the time we worked through it, one question
at a time, one objection at a time, the story
would have gotten fully and completely told.
Not once but 20 times.
Sir, you have previously given testimony in
this case, have you not?

Yes, sir, I gave a deposition.

And prior to the taking of the deposition


you swore that you would tell the truth?

Yes, I believe so.


Well, let me refresh your memory
(approaching the witness). Here it is, page
one. The witness was duly sworn.

Do you remember swearing to tell the


truth, the whole truth, and nothing but the
truth, so help you God?
Yes, sir.

Thats the same oath you have take here


today, isnt it?

Yes, sir.

Do you recognize this transcript as a copy of


the deposition you gave on March 5, 1985?

If you say thats it, then it is.


Wait a minute and lets satisfy you. Look at
this signature. R.J. Johnson. That is your
signature, isnt it?
Yes, sir.

And you signed your name to this


document after you had reviewed the
deposition for errors in your testimony?

I dont remember.
Will you agree with me that just above
your name is the notation, I have read
this deposition and there are no errors in
my testimony.

I see it.

And your name is below that entry.

Dont mean I read the deposition.


Follow me as I read, at page 19, line 25, where
the lawyer asks you: Mr. Johnson, did you
ever steal money or anything of value from
your employers? and you answer, at page 20,
Never, Id never do that. You did say that,
didnt you?

Thats what is says.


And yet, here today, before this court
[pause] and this jury [pause], you have told
us that you in fact stole money from these
accused citizens [never defendants], didnt
you?

Yes, sir I did.


In fact, during Mr. Bergs cross-examination,
you admitted to have stolen upwards of
20,000 gallons of fuel at a time, didnt you?

I aint no thief. Everybody was doing it.


Including your clients.
Perhaps it was my question and if so, I
apologize. Let me ask it again: Did you tell
Mr. Berg on cross-examination only
minutes ago that you had stolen for your
own personal account up to 20,000 gallons
of diesel fuel in one fueling?

Yes, I said that.

One of these statements is not correct,


then, Mr. Johnson?
Is that a question?

Perhaps the way I worded it, the


question confused you, and I apologize.
Let me ask it this way. Which is the lie:
the statement you swore to under oath
on depositionthat you did not steal
from your companyor the one you
swore to today, that you in fact
committed thievery on the job, by
stealing thousands of gallons of diesel
fuel?
My testimony today is the truth.

So that when you swore to tell the whole


truth when you gave your deposition,
you did not see fit to honor your oath to
God?

I guess I lied back then.


And didnt you volunteer to this jury
that Everyone was doing it, that your
employers were stealing too, to try to
minimize your own theft from your own
employer?
Client (accused): victims ex-husband.
Witness: victims widower.
You fairly shook with rage when you came into
this court and saw Mr. Jones, my client?
Yes.
You glowered at him, that is a fair statement,
isnt it?
Yes.
And you hate Mr. Jones because you believe he
killed your wife?
Yes.
And because you were able to live together as
man and wife for only a brief period of time?
Yes. A year, a month, and two weeks.
And I take it you are bereaved?
Yes.
And that you deeply loved your wife?
Yes.
Tell the jury who Billy Faye is.
Billy Faye?
Billy Faye.
My fiancee.
And where does Billy Faye Baxter live?
She lives on my farm, with me.
The farm you inherited from your deceased wife?
Thats right.
How much time elapsed after the death of your wife
before Billy Faye moved in with you at your farm?
I first laid eyes on Billy Faye
Perhaps it was my question and I apologize. How long
was it, after the death of your wife, that Billy Faye
Baxter moved in with you in the farm of yours?
Six months.
You were pretty racked with grief, were you? How
many days after your wifes death did it take for you
to be interested in another woman?
Im still not over it.
All right. Tell me where you met Ms. Billy Faye Baxter.
At the Continental Trailways Station on November 5.
When did Ms. Billy Faye Baxter move into your
house?
The first week of December I believe.
So you would say roughly a month passed in this
romance before the two of you decided to move in
together?
Thats right. If you want to know, it was 14 days.
And you claim that you never met Billy Faye before
you ran into her at a bus station?
I didnt run into her at a bus station. It was a planned
meeting.
Okay, tell me how it was planned.
She is a mail-order bride. She met me through an ad I
placed in Mother Earth News. We corresponded for
approximately a month to six weeks. We phoned
each other. I have some $150 in phone bills.
Well, you could certainly pay those, given what you
inherited from your wife?
(Inaudible answer).
Wait a minute. Did you say Mother Earth News?
Yes.
And your wife was killed June 23rd, only three or
four months before the ad appeared?
Yes.
Let me ask you, are you quite certain that ad
was in October?
I will bring the magazine if you like.
I would like that and you can bring it tomorrow.
Incidentally, how many responses for a wife did
you get from the ad in Mother Earth News?
Between 20 to 30. And it was not for a wife.
It was not for what?
Not for a wife.
For a pen pal?
Whatever.
You did call her a mail-order bride.
Yes, sir.
What did the ad say?
Rural violin maker seeks slim Mother Earth
Type. To the best of my memory now. I will
produce the document.
Seeksdid you say slim?
Yes.
Pretty creative ad for a guy wracked with grief,
isnt it? [Objection]. Let me ask you this: Did
you have something else in mind other than a
pen pal?
I had hopes. My wife was dead. I hoped that
something would develop a year or two down
the road.
Your overweight wife was dead, right?
[Objection]. And I guess things just developed
with your girlfriend a lot faster than you hoped?
Thats right.
Let me suggest that it is only for convenience that
you now tell the jury that you placed that ad with
the idea that something would develop down the
road, so that it would appear to them that you
had a proper mourning period.
No, it is the truth.
xxx

Witness returns the next morning with the ad.


Now according to this, in order to have your ad
in this issue, the September-October issue, you
had to have your ad in before July 11, isnt that
correct?
That is what it says.
Now, your wife died on June 23, 1983, did she
not?
She was killed.
She was killed, yes. No one disputes that. It is
who killed her we are after here. Now sir, was
the date of her death June 23?
Yes.
Did you pay for this ad?
Yes.
And you paid by July 11, only 14 days after the
death of your wife?
Yes.
Isnt it a fair statement, isnt it safe to say, that
you were thinking about having another woman
there living with you at your farm very shortly
after the death of your wife?
No.
Maybe before her death you longed for a slim
Mother Earth type?
Sir, that is a lie.
Yet you placed this ad?
Yes.
Then let me ask again. Werent you looking for
another woman, a slim Mother Earth type to
move in with you?
May I amplify?
Court: You can answer the question.
During that period I was crazy, insane with grief. I
was under the care of a psychologist. I will not
accept rational responsibility for any of my
actions at that time.
So, you would tell this jury that you were just too
crazy to be responsible for what you did?
Yes.
I understand. And you are a man of great
sensitivity?
Yes.
And that you are not the kind of man who would
have the kind of anger it takes to kill. Please take
your time and answer calmly, and I see you are
shaking again.
Yes, I have that kind of anger. I will tell you true.
You could kill, is that what you are telling us?
Yes, I could kill.
******
A narration of the facts the lawyer
believes are necessary to win the case.
A disease of the brain.

Painful for anyone, but fatal for a lawyer.

Fortunately, very rare in the profession.


--Whites Law Dictionary