eff@iiHOHhii-lfii Chapter 3

THE SEVEN PROBLEMS IN THE

PRESENTATION OF EVIDENCE
JosE w. D10KNO

An expert on the law on evidence, Senator Diokno's approach to the subject

covers this entire body of law in seven questions:
1. What facts must I establish as a lawyer for the plaintiff or for the
defendant if my cause of action or defense is to succeed?
2. Which of these facts - or of evidentiary facts tending to prove them
- are deemed proved without my having to present evidence?
3. Who must establish the facts that have to be proved?
4. What degree of proof is needed of these facts?
5. What available evidence is admissible to prove these facts?
6. How do I obtain the evidence I need and preserve it for use at
the trial?
7. How do I present and offer the evidence at the trial?
This approach reflects a deep understanding of the interplay between
evidence, court procedure and trial technique that only a true master of legal
discipline could produce. Senator Diokno's Checklist 2 - Outline of Evidence Rules
(see pages 94-98) - which is based on these seven questions, is a very useful guide
to understanding <J subject that has confounded many practitioners.
A transcription of this lecture, entitled "Problems in the Presentation qf
Evidence," first appeared in Recent Developments in law and Jurisprudence: A
Selection of lectures Given at Various General Law Practice Institutes 1971-1974, 1
based on lectures delivered in Cebu City (2-4 December 1971), Cagayan d~ Oro
City (10-12 February 1972) and Baguio City (25-27 May 1972).

i--- - - t - -- - - -- - - -- - - ·- ·- ·--·

Figure 25-A. A page from the Trial Manual of Sen~tor Diokno on Res /nt~r Alias Acta.·
I have been asked to discuss with you an impossible subject.
"Problems in the presentation of evidence" is so broad a topic that
Wigmore has written ten volumes on it. 2 P roblems of trial technique
will also involve problems of evid ence _The best book on this, by Goldstein,
a former judge in the United States, is a three volume affair. 3

So I cannot possibly take up with you this morning an exhaustive

presentation of the subject. Rather I will hit upon some highlights and hope

52
Diokno On Trial: Techniques and Ideals of the Trial Lawyer Diokno On Trial: Techniques and Ideals of the Trial Lawyer 53
 ilfiffffi:Mhiiifl6i
. t that you are truly interested in may come up during the
- DINFl·IWll!iii@,iHl·l·MiiMl,ifil·l:l·l·#li:P#
h h
t~t~~ms . l~re suggest that we request the judge to please let us know the reference that
questioning that will follow the main e · he is relying on, so that we may provide him, if necessary, with counter-
Now from the point of view of the practitioner, the problems in the references or show him that his reference is outdated or unreliable.
. f vidence boil down to seven general problems.
presentation o e . In the matter of judicial a~m~ssi~ns, 8 one of the problems that crops
up 1s, what happens to an adm1ss1on ma pleading when the pleading has
been amended?
-1.-KNOW-"fHE;f~{5;:Y.:~~~~~~E7 E)1~R~;YE .
Of course, the threshold issue here is whether or not the amendment is
First, what facts must I est~blish as a lawyer for the plaintiff or for accepte~ by the _cou:t. I~ the amended plead~g_is admitt_ed, it supersedes
the defendant if my cause of action or my defense is to succeed? the earher pleadmg. This means that the adm1ss10n contamed in the earlier
pleading ceases to be a judicial admission and becomes an extrajudicial
In order to answer this particular question, we go, first of all, to the
admission. As an extrajudicial admission, it must be established by the
requirements of substantive law. For example, in the case of Senator
party seeking to use it as evidence against the other party.10
Alejandrq Almendras, one of the charges against him is that he interrupted,
by unseemly conduct, the holding of a canvass. For the prosecution to In one case I handled, I objected to the admission of the second
establish its case, it has to show, first, that there was a canvass going on. amended answer on the ground that the defendants were changing the
And to establish this, they must establish that the board of can vassers was theory of their defense. My objection was sustained. So in that particular
in session. Second, they must establish that the canva.;;s was interrupted; case, I did not have to mark the first amended answer because the second
and third, that the cause of the interruption was unseemly conduct on the amended answer had not been admitted.
part of Senator Almendras.
Therefore, it is the preceding pleading, the first amended answer,
In order to determine what the facts an.:, you will ha ve to go to which is in force. The admission contained in the first amended answer
substantive law. In addition, you will have to review the Rules of
thus remained a judicial admission that I did not have to prove anymore
Court on the weight and sufficiency of evidence,4 burden of proof5 and
presu°:1ptions. 6 All of these indicate the facts that you must establish. This at the trial.
1s the first problem that comes up in the presentation of evidence.

~- DE.TERMIN_E WHICH FACTS ARE DEEMED ESTABLISHED

· - ·- __ " ~ ~HOUT.N_EED.OF PROOF .
~ - .:.1... .... • • - • ..: - •
Third, who must establish the facts that remain to be proved?
Second, which of these facts - or of evidentiary facts tending to prove Your problem here is more acute in criminal cases. For instance,
ti,em - are deemed proved wi'th ou t my havmg
. to present evidence? possession of a prohibited drug is penalized under the Revised Penal
Code except upon prescription of a physician.11 Now, is it the burden of
Here you come up with the prob! f. d .. 1 . d . a· . I the prosecution or is it the burden of the defense to prove that there is a
admissions under Rule • ems o JU 1cm notice an JU 1cia
129 7
st
when we find out th t th : For 1:ll ~ce, what can we, as practitioners, do prescription by a physician?
notice of a fact? a e Judge is usmg an outdated book to take judicial
This is a matter that you, of course, will have to determine and you will
find this once again under Rule 13312 and Rule 131, on burden of pro~f.13
I suggest that in all cases wher th . Presumptions are also important, especially the matter of conclusive
on judicial notice but prese t .de ere is some doubt, we d o not d epend
n evi ence to prove that p articular fact. I also
Diokno On Trial: Techniques and Ideals of the Trial Lawyer
55
54 Diokno On Trial: Techniques and Id I f . . -
ea s o the Trial Lawyer
 Chapter 3 The Seven Problems in the Presentation of Evidence
II
d cases will tell you the basic facts fro and testimonial qualifications, the basic rules on which are found in Rules
presump t'ions. The. ru1es·than disputable or cone1us1ve,
· may be drawlll 31s and 130.19 What is the meaning of relevancy? Anything is relevant if it
which a presumption, e1 er n 12
14 tends to establish a fa~t in is~ue, or a fact from which a fact in issue may be
or inferred. inferred. 20 Relev~ce 1s a logi~al or transactional relationship. For instance,
a person is shot with a .38 cah~er revo_lv_er, and the prosecution establishes
that the defendant charged with the killing possesses a .38 caliber revolver.
1-IM@'t'iM Evidently, that is a relevant fact because it tends to establish the fact that the
Fourth, what degree of proof is needed of these remaining facts? defendant, being the owner of the .38 caliber revolver, is possibly the person
who shot the deceased. So relevance is simply a logical or transactional
y, ill also have to review the Rules of Court on the weight and relationship. Later, we will discuss how to get evidence that is relevant.
15
?u w of eVI·dence and you will find this in Rule 133. The issues For the time being, I merely want to state that anything that is relevant is
su ffi aency . f th ·tn .
here may involve the quantity and ~ua11ty_ o e w1 esses_ you will need, admissible, except when it is excluded by the rules.
and the kind of evidence necessary m particular cases. For instance, in the
matter of treason, you need at least two witnesses to the same overt act
16
or a confession of the accused in open court. An extrajudicial confession t" "''rtfa _,J ~
alone without two witnesses to the same overt act, will not be enough. If
you have an extrajudicial confession _in_~ ordinary criminal action, you
will still need proof of the corpus deltctz independent of the extrajudicial There are, of c urse, many rules of exclusion, but the most common is
confession, and you will also find this in Rule 133.
17 the best evidence rule. 21 The best evidence rule only applies to documents.
We lawyers are very prone to object to something, saying, "That is not the
best evidence." In fact, however, when the act that is sought to be proved
is not a document, then the best evidence rule does not enter into the
5. - W..Q&AV~ l,.AB~!;EVJQ~t,jC~ picture at all.
Fifth, what available evidence is admissible to prove these facts? The next rule of exclusion is the parole evidence rule, which also applies
to documents. It says: "When the terms of an agreement have been reduced
And here we come up with the basic problems of the law of evidence·.
to writing, no evidence of the terms thereof can be presented other than
But b~fore we go into that, may I just stress one fact that took me quite a
!ong time to understand when I was beginning to practice law, and that the writing itself." 22
1s, the fact that no matter how much we read the rules of evidence, they
Then you have the rules on hearsay and the exceptions thereto: dying
do not te~ us the most basic rule of all, namely, that evidence consists
of something that must reach the senses of the court. All evidence boils declaration, declaration against interest, pedigree, family reputation,
down actually to either a ~itness or an object. The object may be a common reputation, res gestae, entries in the course of business, entries
documet or it may be a thing, but all evidence boils down to that. We in official records, commercial lists, learned treatises, and testimony at a
canlnnotthi~ve ~y evidence unless we have a witness or an object and former trial. 23 Finally, you have the problem of admissions, the opinion
u ess s witness or this ob1· e t . d rule, character evidence rule and proof of similar acts. 24 Now, these are all
f::~er
realize this, it is much . c is presente to the court. And once we
admissibility, and the to und erstand all these rules on relevance, basic rules of evidence. t1.fa- OJA4 /I. vi,_
1
The only point that I would like to stress here, in connection with
admissions and confessions, is that normally a person's statement is
THE MEANING OF RELEVANT EVIDENCE admissible only against him. 25 The statement of somebody else made outside
the courtroom is not admissible against this person. Say for example there
Now because we have alwa s t d are six persons charged with a crime, and three of them have been caught
we must also consider the rul Y O epend upon a witness or an object, and then tried. Before the trial is over, the fourth defendant is also caught
es on relevancy, exclusions, admissibility
56 Diokno On Trial: Techniques and Ideals 0 f h Diokno On Trial: Techniques and Ideals of the Trial Lawyer 57
t e Trial Lawyer
 ..,.......---
CfillM:lilHiii-flli lf-HllilSiilfliiii:Nii:iiiiiMih&iH:1·11¥11,iff
- t admitting his guilt and implicatin ough I should have, what I did was during my cross-examination of
· ct·iC1a
· 1 statementg
and he gives
th e thr
. · 1statemen
. an extrajud ic1a
t Now qui e
d . not a mis
·t clearly, the extraJu
,
d
.
C
hi
ee other defendan s. d . sible in evidence against s co-accused
ti
the ;:c f
al thd t r when she was presented by the prosecution, I already brought
ct that once those bullets had been inflicted he could not talk.
out e :cution never presented that dying declaration.
of the fourth accuse ~s This is simply because _u n er ou~ ons tution, 26 The pros
who were caught earlier. t and to cross-examine ~e witnesses against Our major problem in defending against this type of case is that the
u are entitled to confron d was not presented in court as a witness
. declaration can be easily fabricated. You only need one person
y~u and since this other accu th se would only be admissible as against him'
y . . 1 t tement en d , d~nTs supposed to have talked to the deceased at the moment before his
his extrajud1C1a s a ot a ainst the first three accuse .
the fourth accused, but n g :ea~- Sometimes the pro~ecution ~akes a mi~take and forgets to pr~ve
urt has allowed an exception and that is the ,, sciousness of impending death. So you think you can get away with
Co .t:d say: "I object, Your Honor." It can still be admitted as part of the res
However, the . Supreme
which tally . respec t s. 27 Wh en there are
in their rnaJor
case of confesswns . . d pendently of each other and these confessions i tae. So I must warn you that this is one of the trickiest and most difficult
severa1c?nfessions.giventhe in e important aspects, _th e m
more . terl~ckmg . facts g~:ces of evidence to counter-act in a criminal case - the problem of a dying
tally or interlock in b ative of the truth of their confess10ns and are ~eclaration. It's very easy to fabricate; very hard to disprove.
are considered as corro or
admissible for that purpose. The only advice that I can give on this point is, try to trace the actions
of the deceased and of the persons who supposedly took the dying
declaration. If for instance the dying declaration is taken in a hospital,
then you have an opportunity because you can question the nurses, the
THE DYING DECLARATION: EASY TO FABRICATE, HARD TO DISPROVE attendants, the doctors and they can tell you if truthfully there was a dying
With respect to the hearsay rule, the major problem to be very careful declaration or not. They can tell you if the patient was in a condition to
about and which we always encounter as defense lawyers in fabricated talk intelligently or not. So that's okay. In that case, you still have a chance
cases against our clients is a dying declaration. 28 I'll give you an example to disprove it.
of how often that happens. But what happens in many cases, especially in the rural areas, is this:
I was trying a case recently in Tarlac, where the Philippine Constabulary The accused suffers a wound; then the policeman comes and says: "Before
(PC) presented to the fiscal (public prosecutor) in the preliminary he died, I was able to talk to him and this is what he told me." You have
investigation a dying declaration, signed by a PC captain and attested n o d octor, nobody else was around; only the policeman and the deceased.
to by a PC lieutenant. When the case was brought to me, the first thing So it becomes a question of credibility. In those cases, the only advice I __L
that I did was to look at the wounds of the deceased. I found out that can give you is: Present as solid a defense on other points as you can and J("
he had one bullet that came here and exited here; another that came in try to weak en the testimony of the policeman by showing bias, prejudice,
here and exited here, through and through; and then there was one that relationship or monetary considerations.
entered here and came out here at the back of the brain. So he practically Do for instance what I did in one case where the witness came from
had no brains left.
a very low-income group. When he testified, and this was just after
When I saw this, I asked one of my associates to go to Tarlac to ask Christmas, he was wearing a gold watch and a shirt jack that came from
th e doctor who performed th h either Aguinaldo's or Rustan's and new brown shoes. When I noticed this, I
been inflicted could . e autopsy, ow long after these injuries had had no other alternative but to ask him where he got his watch. He admitted
not have talked tthis m;nhave talked? The doctor told him: "He could that it was a Christmas gift from the parents of the deceased. And when
were fired succ~s:~ elvethn or a few seconds." Considering that the shots you can get admissions like those, and sometimes you can if you can catch
ve y, e moment that f th b . th
brain was already blown ff h any one o e ullets got in, e them by surprise, then you have, to a certain extent, been able to minimize
knew the PC captain ind:
so e had no more capacity to talk. Because I
arge and I did not want to put him into trouble
the damage that fabricated evidence can cause.

58 Diokno On Trial : Techniques and Ideals of the Trial Lawyer 59

Diokno On Trial: Techniques and Ideals of the Trial Lawyer

L
F
-UltfiiM:i:ii·NIMia
LlflCATIONS . e is ended. Attorney and client, doctor and patient, priest and
TESTIMONIAL QUA I on relevance and admissibility and marriag
·t t and of course, a publ'1c offi cer m
· connection
· w1·th matters that
we have taken Uf the;s:monial qualificatio~ ..Except in those peni e:ired knowledge of during the time that he was in office which
Now ow the question o blic interest, that IS, m the matter f he ac~rt should determine would be contrary to public interest for him
wio the co
. close are the other pnvI
. .1eged commumca · ti' ons. 36
ca~e~ w r
wiUtak;u~;ere is an overri~i~g communications, 3:1Y person
lationships or pnVl eg ke known his perceptions, regardle
pnv1lege re_ty to perceive and to ma .tness 29 ss
to d IS '

has the capaCI d'tion can be a w1 . 6._0B1AIN-AND PRf.SfRVE :fME...fV!DENGE FOR +HE TRIAL
. mental con I '
. of age or 'th this question: Can a person who • Sixth, how do I obtain the evidence I need and preserve it for use at
ou com.e up ve ry often WI.s yes as long as he is . 'f . IS
tesh ymg during
So Y . ? 'Jhe answer I ' . d d .
the trial?
. ane be a witness. b t something that transpire urmg one of
mse of his Juc1'd moments thi a ou. a matter of very unl'k I ely occurrence but There are of course, judicial and extrajudicial methods of getting and
on t Now s IS l. . preserving the evidence. Under judicial methods, we have -
his lucid momen s. . r that the definition of lega msamty and medical
it can happen. Rem_embe t
1. Discovery and depositions which you will find in Rules 23
insanity are very d1fferen .
to 29 of the Rules of Court;
. med a person need not be one hundred
the Jaw is conce
As far as_ .
' f h . h
h if he understands the nature o w at 1s appening 2. Perpetuation of testimony which you will find in Rule 2437
percent sane;itisenoug mmunicate that. That he might believe in and Sections 12,13 and 15 of Rule 119;
dhimandifhecanco . h .. 3. Subpoenas and subpoenas duces tecum which you will find
aroun . b li in spirits, these are signs t at might indicate
ghosts, that he_ nught e e; not affect the testimonial qualifications of a in Rule 21; and
medical insaruty bthut wouuld affect the weight to be given to his testimony. 4. Search and seizure or search warrants which you will find
·tness However eyco d .. d
wi . · th t erson believes in ghosts an spmts, an you can in Rule 126 of the Rules of Court.
So if you kn~w thata pt and connect it to what he or she is testifying to,
somehow bnng a ou · · · hin h d'b'l' f These are all judicial methods of taking and preserving the evidence,
then you would have scored a point d1m1ms g t e ere I I Ity o that and I think that we do not need to go into any great detail here. We rarely
particular witness. 30 use these methods. Searches and seizures are generally used only by the
prosecution. Only the prosecution gets search warrants because you have
I mentioned "privileged relationship"_ ~s a rule f?r ex~lud_ing
to establish the commission of an offense.
·tn ses.31 There are three cases of such a pnv1leged relationship. First,
w1 es hi 'f . h h
marital relationship. No husband can testify against ·s w1 e wit out er Subpoenas - the case is already in court and if you get a subpoena it is
consent, or vice versa, except in a civil case by one against the other, or in mostly a subpoena duces tecum to a public officer to produce certain records.
as criminal case for a crime committed by one against the other.32 Second, If you get a subpoena ad testificandum, it is usually only with respect to a
t .(' parental and filial privilege.33Third, we have what is known as the "dead
man's rule."34 This means that in a monetary claim against a deceased person
~JJrJor a transaction having taken place during the life of the deceased person,
favorable witness and you are just protecting yourself in case that witness
fails to appear at the date of the trial.

ofVil'f the claimant cannot testify to any matter of fact that took place during the Incidentally, that is a very good practice. I strongly recommend that
X life of the deceased person. These are the privileged relationships. you talk to all of your witnesses and tell them, "Huwag kayong magalit pero
mapipilitan akong kumuha ng subpoena para sa inyo, sapagka't kung hindi kayo
Privileged communications, of course, come down to the marital makarating sa husgado baka magalit sa akin ang hukom at ipawalang-bisa ang
co~dences, which will apply even if the marriage is already terminated. 35 ating kaso. " (Please don't be angry but I will have to get a subpoena that
Neither husband nor wife can be questioned as to what was said to him will be served on you. The reason is because the court might get mad at
or to her by the other during their marriage. This holds true even after the me if you don't attend and even our case may be jeopardized.)

60 Diokno On Trial: Techniques and Ideals of the Trial Lawyer Diokno On Trial : Techniques and Ideals of the Trial Lawyer 61
 p
MlfiiM:IM-Mii-iill lifiJJSill:•IMIMiiiiiiiiMl:!Bii·l:1·11¥/i@i
was worried that if I ~r~ught this out directly, they would come up with
1
THE IMPORTANCE OF DISCOVERY AND DEPOSITIONS sorne excuse an~ say, Smee he_was the manager, we gave him a bigger
·r s and perpetuation of testimony are share in the profits, but our capital was the same." I didn't know how to
Discovery and deposi 10~ that in the first case, discovery and go around this, but finally I decided to try my luck.
substantially the sa~el ex~pfiled whereas in the case of perpetuation
depositions, the case ~s a rtea tyfiled but expected to be filed, and these are I took the de~osition of ~ne of the pa~tners, the least intelligent among
of te~rimonp v the case is no ye thern. I spent the first day deliberately asking him questions where he could
. ules.38 I feel that there is not very much we have to answer me in a way as ~f he were putting down my case just to build up
provided for _in ~e ~atter except that I would like to see more use made
his confidence. In the middle of my second day of deposition I asked him
worry a~~ut in thifs ests for admission.39 I do not find enough use of
by practitioners o requ this question very innocently: "Of course, you were dividing your profits
request for admission. in accordance with the capital?"
·ti·ons can be verv very important but they are very
I find th at d eposi • J' d h Without thinking very much, he answered: "Oh yes, we divided the
. b you have to hire a stenographer an you ave to pay
expensive, ecause . H owever, you d o not spend profits according to capital." I had gotten what I wanted. Right after that,
bli So depositions are expensive. I still continued asking him stupid questions because I did not want his
th e chnotary pu c. t for admission If you had a request for admission which
mu on a reques · th • lawyer to realize what I was after. So we finished the deposition in two
is denied by the adverse party and you later can prove that eir denial days. I only wanted one question and one answer there. The rest were, to
was unfounded, you are entitled to the payment of costs and reasonable
me, "basura." (garbage)
expenses in proving that evidence.
Come the date of trial, I presented the deposition and I could see the
To give you an illustration of how important depositions are during smile on my opponent's face. After presenting it, I presented the income tax
the trial of cases, let me tell you about a case I tried about 20 years a~o. return and then I saw my opponent's smile suddenly disappear, because
I was representing the widow of the general manager of a pa~tnership. he had realized that I got what I wanted in the deposition. And now I had
It was a partnership of four brothers and one of them had died and I the basis to prove my point because my next witness was an accountant,
was representing his widow. Let us call him X. This was shortly after the a CPA (Certified Public Accountant), who testified that according to
Liberation. The articles of co-partnership and the books of account had his computation based on the percentage of profit, my client's husband
disappeared. The important part there was the brothers received war actually owned 69 percent of the partnership capital. So on that basis, my
damage amounting to very close to a million pesos and the brothers of X client having no children, approximately 55 percent belong to her as the
were only giving the latter's widow about one hundred thousand pesos.
surviving spouse.
It was very important for me to try to locate some record s of this
partnership and finally I was able to locate the income tax returns of the EXTRAJUDICIAL METHODS OF GETTING EVIDENCE
partnership of the last year before the occupation. However, the income tax
returns did not contain a balance sheet. It did not say what was the capital What about the extrajudicial methods of getting the evidenc~? This
of each partner. It contained only the distribution of the profits among is one problem we are constantly faced with everyday of our l~ves as
th~ par~er_s and it was important for me to establish that the profits were practicing lawyers. I do not know how other lawyers o~era!e. I will only
being distributed according to capital participation. Because if that were tell you how we operate in my law office and please _d on t misunderstand
~rue and my client's husband had the highest percentage of profits in the me. When I give you examples from my o~ exp~~ence or tell you how
~comet~ returns, he would therefore also have the highest participation we operate in my office, it is not because I think this is the best or the only
m the capital and therefore the biggest share of the one million pesos. way, it is only as an example of what, perhaps, you should do.

. W~thout the articles of incorporation, without anything else, and the When a client comes into the office, the first thing that we do is we
wife did not know anything ab out the partnership
. because she was no t a open a file folder for him. Our file folders are standard file folders but
member, I had to depend only on a partner. And all of them were hostile. 63
Diokno On Trial : Techniques and Ideals of the Trial Lawyer

62 Diokno On Trial: Techniques and Ideals of the Trial Lawyer

 >
cilliiii\:\Hiiiifll Df·i&FN!S1ii,11411:·Hl:l•SliMi,ii\·1·11Hiili:iilr------
. f st rs (one on each side) and on the left
. c data concerning t h e c1·ient . Th at basic
actually we h ave two file ba ene As we go along interviewing the client and studying the case, we note

data consist ~f three

9); second, Things to D~
~,:~t:~~~rm
side is where we keep ~he . ;~i t the Retainer Record (Form 1, see Figure

26
2, see Figure 10) and third, Things to
) These three records are kept here, actually
d 0 wn all the facts that we need evidence about. For instance, the client
es to you on an accident case. The first thing that you would want
co:ld be a copy of the police report, if any, and photographs. So you put
wo 1· Th
Do • Law (Form 3, see Figure . mber one, What - po ice report. e next column is, who is going to get
only three sheets of paper. ~at? Will it be th~ client or wi~l it be the o_ffic~? It depends. Sometimes
the client is a relative of the pobceman and it will be very easy for him to
p •tmetoillustratevery briefly the way we. prepare . for
d tha trial in my
ermi th t omes into the office is assigne e standard et the copy of the police report. Sometimes it is easier for the office. So if
law office. EverydcaseTh afi est document filed in the folder is the Retainer
8 1/2" b 14" fol er. e r . ft is the client, just put a check mark there to indicate that it is the client's
9) At the back of the Retainer responsibility to bring that in. If it is your office's responsibility, you not
- Y F·
Record (Form 1 see zgure . A h spaces
1 Record, b are
'
provided for notes o e f th initial interview with
. the
, fc ient. t t e ottom of only put a check mark. Yo~ also put the _name of ilie la~er or the employee
the Retainer Record is the space for the retainer s ee. who is responsible for getting that particular document. It could be a clerk.
So let's say his name is Jose Cruz, then it could be JC so you will know that
The record also indicates whether the client i~ a new or a~ old client, that is the man in the office in charge of getting these facts.
or a general retainer client engaging the law office on a particular case;
thepersonwh o m . troduced him to us and the address, telephone
• numbers Then you give him a deadline. Because if you don't give people
and relationship of the person introducing an~ of _the chent. We_ a1so n?te deadlines, things will never get done. You know that becau.se you and I
down the residence certificate on the form. ~swill do away with askmg always do the same thing. We work 24 hours before the deadline and the
him for his residence certificate from time to time. Other data that are put next day, we ask for an extension. This Date Done is very important because
in the retainer's record are the name of the case, the names of adverse if you don't put a Date Done, and you are reviewing the record of your case,
parties, adverse client's counsel and so on. perhaps three months later you may forget whether you already had the
police report or not. So once this Date Due is entered then the Date Done
Upon completion of the Retainer Record, the lawyer in charge of the is to be entered when the job is completed.
case is required to fill out two forms which will be his guide in the handling
So you have now a running I
of the case. One is for the facts of the case (Things to Do - Facts, Form 2)
and the other is for the law of the case (Things to Do - Law, Form 3). The
reco r d of all the facts that you
THINGS TO
DO-LAW
\File Tab

"''" File No. ~ I

lawyer in charge should number each separate fact or investigation he
believe should be researched and the
evidence that you believe shbuld be I~ I .... I:'" ""'1""'"1~ :<>-
\ lo.•\
om \

wants. Then the next line is headed What; in other words, w hat things to
obtained, who is to get them, when
do. Then the next one is Assigned to. Then we put the initial of the lawyer
it is to be done, and whether it has
in charge of doing it so we will know who is going to do the job. It could
been done or not. This is kept here on
be that the client is the one who will have to do it or it could be others
the left side of the folder so that it's
indicating that we may have hired detectives or ex?erts to do something.
easy for you to refer to it while the
And then, equally important are the last two columns for date: Date Due
pleadings and other records are kept
and Date Done. So you see this form is actually a record of w hat to do as
far as the facts are concerned. on the right side.

Then the third form, Things to Do

. While ~e client is being interviewed and while ent,ies are being made see Figure 26), actually
111th • Law (Form 3,
e Retainer Record (_Form 1), entries are also being made in Things to should be Issues to Research, but in
D~ • Facts (Form 2, see ~zgure 10). This Things to Do • Facts is a very simple
order to make it the same, we call I I I
pie~e of paper ~d all it has actually is just these columns: Number, What, it the Things to Do - Law form and
Assigned to, Chent, Office, Date Due and Date Done.
actually it is of course, very, very Figure 26. Things To Do • Law (see page 123)

64
Diokno On Trial : Techniques and Ideals of the Trial Lawyer • Oiokno On Trial: Techniques and Ideals of the Trial Lawyer 65
 p
IMiflii·l·li·til·iiis. Chapter 3 · .The Seven Problems in the Presentation of Evidenc e
II
F t except that you no longer leave a line fo with the necessary d ata. Here, I must warn you never to accept your client'
simil~r to Things to D~e;ci:~ot to do any research in law. And all yo~ documents without submitting them to a very thorough examination. s
the client because d f What, you have Issue, Assigned To, Date
. "number mstea o I recall one case I handled as a very young lawyer. It was the case of
h ave is a '
Due and Date Done. acknowledgment of a natural child. I represented the mother of the child
cently in a case I am handling. A prosecution and one of the documents she gave me, the one that she said is the most
A estion came up re · · h d ·
. qu led to testify. This prosecution witness a an extraJudicial important, was a letter from the man admitting the parentage of the child.
witness was ca~ th ccused But somehow, one of the other accused But luckily, I had other documents signed by the man and when I compared
statemen~ ag;i~~st :a:e appr~ached th~s witness an~ tal~ed to him, s~ these, the letter turned out to be false.
not my che~ ' t tifi"ed he said: "Hindi po to too ang smab1 ko sa statement
when the witness es ako' " (I was just force d to ma k e t h at statement
. •i ·t mang So I cross-examined my own client and she broke down and admitted
na 'yan, pmz 1 Ia · , that she had caused ~at lette~ to be f~bricated, thinking that it would help
it's not true.) her case. I told her, We don t need it, we have enough evidence outside
. Is this statement admissible to prove what is stated in the of this. If we present this and it turned out to be fabricated, for in fact it is,
Question: . .
our whole case will go out the window."
statement? Can it be used as independent evidence of the substantive issues
or is it useful only to impeach? So be very careful even with your own client. Sometimes your client
The authorities are divided, but the weight of the authorities (Wigmore tells you: "Well, you know it is that way; only we cannot do it. I don't
and company), hold that that statement is good only for impeachment. It have any witness." This is also important from the point of view of cross-
cannot be used as a proof of the truth of the matters stated in the statement. examination. How does a practicing attorney reason about these matters?
It can only be proof of impeachment of this witness so that his credibility Well, the answer, I think, is this: You try to put yourself in the place of
is thereby affected. The reason for this is that the accused are entitled to the person who is supposed to have done or not to have done something,
and you ask yourself: "If I had done this act, what would I normally do
cross-examine.
as a consequence?" And then you try to see if you can get evidence of the
Now if the witness on the witness stand said, "I do not know anything other acts that follow.
about this. I was only forced to give this statement."

How are you going to cross-examine him on that? He has not testified
THINKING FOR CROSS-EXAMINATION
against you. And you cannot cross-examine him on a statement he gave out
of court. That is why the weight of evidence is, it is not ad missible except For instance, in the case of rape, one of the most important factors
for purposes of impeachment. that is considered by the courts, especially when the girl is young and still
living with the parents, is when she was free, did she report the rape to her
However, as I said, there is a division· some courts hold that it is
40 parents? Why? Because the normal reaction of a girl who has been raped
ad~~ssible ~s proof of the substantive facts but they are in the minority. is, the moment she is free and she sees her mother is to cry and say what
This i~ the kind of task you should include in the form Things to Do· Law happenec. So if she did not, then maybe the rape was with consent.
(see Figure 26).
You can think of a thousand and one examples, and thi? is also a very
useful way of thinking when you are cross-examining the witness.
EXAMINE DOCUMENTS CAREFULLY
INCLUDING THOSE FROM YOUR. CLIENT When the witness says he was present at an occasion on such a date and
saw such a thing, then what do we normally ask? We ask the circumst~ces
Let's go back now to th bl t surrounding that event. We don't normally go i~to ~e root of ~he ~atter,
of the time d e pro em of how to get evidence. Well, mos
you epend on your cl' t M · olve because he will ol'ly be repeating what he said m direct exarrunatton, so
contracts docu t ien · ost of the cases you have inv
' 1
men s, etters, and you depend on the client to furnish you 67
Diokno On Trial: Techniques and Ideals of the Trial Lawyer
66 Diokno On Trial· Te h . --
. c nrques and Ideals of the Trial Lawyer
 ilff@•M@Hil!Y.li. u
a ter 3: The Seven Problems in the Presentation of Evidence

d. ctrcumstances. Because if he were there hown. Somehow you can do this if you know how his mind operates
we go around all the surroun ::kngs. If he did not, the chances are, he bes
and you 1<now h ow h e reacts t o cer t am
. situations
· · as you go along.
he would have seen and hear
was not there. This is why one of the things I do with witnesses who have never

This is
• LL : - 1,;..,
. the kind ofthiuwUU-l•g
that I follow, but perhaps there may be
II . f
. the one I have been fo owmg or many years
other_better ways~ a~:ut cross-examination also, I might just as well,
ts
:
0
tified in court before is to instruct my client to bring them to the sala
urtroom) of the judge wh ere they will testify, several days before the
ring, They sit among the people and watch the proceedings, so they
and since ~e are t ne! oint, suggest this: If it is at all p ossible, in your e; used to how it is like being in court. When they go there at the date of
before I skip to the ti' P on cross put the witness off balan ce. f:e trial, "hindi sila maninibago." (They will not find it unfamiliar.)
first two or three ques ons ,

How?
7 PRESENT AND ,Qf:EER~Y-OUR EVIDENCE.EEEEC IVELY AND
s You may know something about the witness . · PRESERVE. EXCLUDED EVIDENCE FOR APPEAL
There are several Way ·
that can affect his credibility that he does not know you know. Or you may
e question that is not directly related to the case apparently. Seventh and last, how do I present and offer the evidence at the
ask him som . th ·11 b .
Well, what I do normally is this: I ask him questions at w1 nng out trial?
some contradictions in his answers.
As I said earlier you have to know the methods, ways of thinking, and
But the judges here can tell you that cross-exam~ation is grossly characteristics of the presiding judge, but do not be misled. Some judges
overrated. It is only in exceptional cases that a case 1s won or lost by will tell you, "Oh, that's enough already, and then when you go up on
cross-examination. Ninety-five percent of cases are won or lost by the appeal, "kulang ang ebidensiya mo." (Your evidence is insufficient).
strength of your direct evidence and your ability to present it_in a way
that convinces the judge. 'fhis means that you have to know the Judge, not In those cases, whenever that should happen, then simply make of
in the improper way, but you have to know how the judge's mind works; record what other evidence you have to offer and make of record that it is
how he reasons. the ju dge who is stopping you from presenting this other evidence. This
is so because the judge is entitled under the rules to stop the presentation
For instance, there used to be a judge who is now retired, who was a of evidence at any time that he believes it to be unne~ssary. There is that
judge of first impression. That judge would rely heavily on the testimony provision in the Rules of Court. 41 So he is not going beyond his power in
of the first witness who gives him a good impression even if the testimony stopping you, but he is human and he may make a mistake.
is weak and contradicted by later witnesses. On the other hand, there are
judges who are judges of last impression. In other words, in presenting So to protect yourself, you should make it of record that the judge
your witnesses, you should reserve your best witness as the last one. is stopping you and also make it of record what witness yo~ hav:, what
documents you have, and what would be the substance of their testimony,
, There are_iudges who will convict the accused n o matter h ow good so that on appeal, at the very worst, what ~an h~pp:n would be a n~w
your defense 1s. What will you do under such conditions? trial to present this witness but not an outnght d1sm1ssal of your action
because of insufficiency of your evidence. That is why the tender or offer
You continue to try your case before him but with an eye to bringing the of proof is so important.
case up 0 ~ ap~ea~. You should see to it that he commits mistakes w ithout
you pushing him'd into commi·tting these mistakes.
. Mistakes for instance on QUESTIONING THE FORGETFUL WITNESS
ru lings on evi ence and pa ti I I . th
will find th t . r cu ar Y m e showing of bias. Because you Now there is one last point I would like to make, because I have heard
a most Judges who a .
biased against · d. .d al re prone to convict the accused are not this very often and it is really nothing more than carelessness on the part
. . mhivi u_ defendants, but against defendants as a whole.
And this b1as 1s s own m the of the counsel.
course of the tnal
. if you know how to let it .
69
68 Diokno On Trial: Techniques and Ideals of the Trial Lawyer
Diokno On Trial: Techniques and Ideals of the Trial Lawyer
 - ..,.......--
-idfli·iiiHi4iiH;fl jr-tdiiFIWP..iiiiMIWAIHHiN:li
is rather forgetful or who c:in~ . t giving money to the witness. Warn your client against giving gifts.
witness Who ~«1ot
Very often you have a k him, "And what else happened?" and agatfl:•mes you would like to find out what is the evidence of the other
. f well. You as . sre~ften your client can give you that information, especially in the
express h1msel verr, d et there is something more you want to bring
he says, "No more. An Y d anything anymore, because the witne st r:i areas, long before the trial. !'le knows who are the witnesses of his
t you cannot o f k' ? ss ru nent. So you ha.ve enough time to prepare your cross-examination.
out from him, Bu
'd "No more." So what is
sat '
. the correct form o as mg •
~Pf ~ometimes, in a city like Cagayan de Oro, which is highly urbanized,
. " at else do you remem ber h appene d?" . Don't forget . u .minal cases, you may not know who are the surprise witnesses of the
Toe answer 1s, Wh b r ,, Why? Because under our rules whe J.11 ~{:e. How do you find this out? Well, the answer usually is, you make
"do you remem e • n
h~ends with the investigators and so you find out. There's nothing wrong
that phrase, d the recollection of a witness, you may ask a leading
you have exhauste f rm is "What else happened that you remember?" 'th this). It is not immoral. You are not askiqg them to change anything;
question. So the prop~~Ook y Wh,at you have established is not that nothin·g (you
Wl . . .
are simply preventing surpnse witnesses.
So he says, "Nomoreb t · nly a·
that he does not remember anything else that
O
else happenedth, u can refresh his recollection by a leading question 1 Thank you. [Applause]
happened. So en you think kn .
find many of us, especi~lly as we_ grow older and we ow everything,
forget to do this very simple thing.

Jose w. Diokno, Problems in the Presentation of Evidence, in RECENT DEVELOPMENTS 1N LAw

THE PROBLEM OF COMPROMISED WITNESSES AND JURISPRUDENCE: A SELECTION OF LECTURES GIVEN AT VARIOUS GENERAL LAW PRACTICE INSTITUTES
1971-1974 62-82 (Casiano 0 . Flores ed., U.P. Lar' Center) (1975).
One more point. How do you preserve evidence extrajudicially? Or
to put it more bluntly, how do you keep your witness happy so that the 2 J.M. W1GMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EviDENCE IN TRIAL AT COMMON LAw
(3rd ed., 1940). .
other side cannot get to him?
3 IRVING GOLDSTEIN & FRED LANE, GOLDSTEIN TRIAL TECHNIQUE (2nd ed. 1969).
This is a very practical question and the only answer that I can give you 4 RuLES oF CouRT, Rule 133, §§ 1-7.
is, that it has to be your client. You as a lawyer, can only do these things:
5 RuLES oF CouRT, Rule 131, § 1: "Burden of proof is the duty of a party to present evidence
First, take his statement; if possible take the statement by tape recording. on the facts in issue necessary to establish his claim or defense by the amount of evidence
However, remember that there is an Anti-Wiretapping Law42 and if you required by law."
record such a statement you must make it of record in the tape that the 6 RuLEs oF CouRT, Rule 131 , §§ 2-4.
person you are talking to knows that and consents to the recording of your
7 RuLES oF CouRT, Rule 129, §§ 1, 2 & 4:
conversation, so that you can use it later on.
"SEC. 1. Judicial notice, when mandatory. - A court shall take judicial notice without the
. Why do I propose this procedure? Because most people, if they have introduction of evidence of the existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations, the admiralty and maritime
si~ed affidavit and have also bern tape recorded will not change courts of the world and their seals, the political constitution and history of the Philippines, the
th~ir t~shmonies anymore. The worst that can happen i/ they change their official acts of the legislative, executive and judicial departments of the Philippines, the laws
mind 1s that they wi·11 Just· absent themselves at the hearing if they have of nature, the measure of time, and the geographical divisions.
been spoken to by the othe ty In h. '
coercive pro f th r par · w 1ch case you can always use the SEC. 2. Judicial notice, when discretionary. -A court may take judicial notice of matter which
have now thec.rr~ssffio'd e_ 1aw to see to it that they go td court. And since you
are of public knowledge, or are capable of unquestionable demonstration, or ought )O be known
· a avits and th · · to judges because of their judicial functions.
one. When they he th . . eir vmce on tape, that voice is an important
they will admit what ar their hvoice com.mg out of the tape, as a general ru1e, SEC. 4. Judicial Admissions. - An admission, verbal or written, made by a party in the course of
the proceedings in the same case, does not require proof. The admission may be ~nt'.adicted
ey ad t0ld you. only by showing that it was made through palpable mistake or that no such adm1ss1on was
On the other hand, you have . made."
should tell your client t t to be c_areful m advising your client. You 8 See RuLES 01: CouRT, Rule 129, § 4.
no O antagonize his witness. Warn your client
70 Diokno On Tr'iaI·. Techn1ques
. and Id I .. - Diokno On Trial: Techniques and Ideals of the Trial Lawyer 71
ea s of the Trial Lawyer

b
 nlliiii:Mi·ifififil ~td!WIGQ.ii.lidii411MP
111r1 a
ww::··,rmll:l'I
2 ---,
- -~
R § . "An amended pleading supersedes the pleading that it arn8nd8 Revised penal Code, art. 1141[ 2; RuLEs oF CouRT, Rule 133 § 3. "An . .. \
10 8
9 RuLES oF Codu~, . u1e. s'upe~ed pleadings may be received in evidence against the pl - 17 made by an accused, shall not be sufficient ground for co' ·ci·
extra1ud1cial confession
However, a mIssIons m . d • th d eader evidence of corpus delicti." nvi ion, unless corroborated by
and claims or defenses alleged therein not incorporate m e amen ed pleading shall b~
deemed waived." RuLES oF CouRT, Rule 128, §§ 3 & 4:
18
10 In Javellana v. D.O. Plaza Enterprises, Inc. (32 SCRA 261), _th~ ?curt s~ated that: "Havin •sEC. 3. Admissibility of evidence. - Evidence is admissible wh 1 .
.1 15
e original complaint lost its character as a Jud1c1al admission which w 9 and is not excluded by the law or rules. en relevant to the issue
been ame nded ' th xi . d" . I d . . OUld
not have required proof, _and _became merelJ an e raJu 1c1a a m1ss1on, the admissibility of
which, as evidence, requires its formal offer. SEC. 4. Relevancy; collateral matters. - Evidence must hav .
issue as to induce belief in its existence or non-existence Evid e such relallon to the fact in
11 1
The present law on dangerous d~gs, Repub~c Act No. 9165 (2002), prohibits possession of not be allowed, except when it tends in any reasonable degre:~r:e~~ :- ~ ~~1 matte~ _shall
11
a dangerous drug, "unless authonzed by law. improbability of the fact in issue." ' a is e probability or

12 RuLES OF CouRT, Rule 133, §§ 2 & 4: 19 RULES OF COURT, Rule 130, §§ 20- 24.
"SEC. 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to 20 RULES OF COURT, Rule 128, § 4.
acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable do ~n
does not mean such _a degre~ of pro_of as, excluding possibility of e_rror, produces absol~t~ RuLES oF CouRT, Rule 130, §§ 3-4.
21
certainty. Moral certainty only Is required, or that degree of proof which produces convict"
. . d" d . d" ion RuLES oF CouRT, Rule 130, § 9.
m an unpreiu ice mm . 22
23 RULES oF CouRT, Rule 130, §§ 36-47.
"SEC. 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is sufficient fo
conviction if: r 24 RuLES oF CouRT, Rule 130, §§ 26 - 35, 50-51 .
(a) There is more than one circumstance; 25 RULES oF CouRT, Rule 130, § 28: The rights of a party cannot be prejudiced by an a 1
(b) The facts from which the inferences are derived are proven; declaration, or omission of another, except as hereinafter provided." c'
(c) The combination of all circumstances is such as to produce a conviction beyond
26 PHIL. CoNsT. art. Ill,§ 14.
reasonable doubt."
27 People v. Badilla, et. al., 48 Phil. 718; People v. Ola, L-47147, July 3; 1987; People v.
13 RULES OF CouRT, Rule 131, § 1: "Burden of proof is the duty of a party to present evidence Condemena, G.R. No. L-22426, 29 May 1968, 23 SCRA 910, 919 (1968), People v. Narciso,
on the facts in issue necessary to establish his claim or defense by the amount of evidence G.R. No. L-244484, 28 May 1968, 23 SCRA853 (1968).
req~ired by l_aw." In a case of possession of drugs, the accused has the burden of proving that
he Is a_uth?nzed to posse~s the drugs. The Court held that: "When an exception or negative 28 RULES OF COURT, Rule 130, § 37.
allegation Is not an ingredient of the offense, and is a matter of defense, it need not be alleged
The phrase "unless lawfully authorized" in the 1st paragraph of Art. 190, states an element of 29 RuLEs oF CouRT, Rule 130, § 20.
?efense. Th~refore, it is not necessary to allege in the information (and prove) that the accused 30 Disqualification by reason of mental incapacity or immaturity is covered by Rule 130, Sec.
is not authonzed to possess opium." (U.S. v. Chan Toco, 12 Phil. 262). On the other hand, in 21 of the Rules of Court. Child witnesses are now covered by Supreme Court Resolution No.
1ll~gal p~ssessIon of firearms, the prosecution bears the burden of proving that the firearm is A.M. No. 00-4-07-SC dated 21 November 2000, effective 15 December 2000.
:thou! hce~se._That the accused held the firearm with animus possidendi an9 without the
rrespondmg license therefore, Is an element of the crime of illegal possession of firearm. 31 RuLES oF CouRT, Rule 130, § 20. "Except as provided in the next succeeding section, all
(People v. Camoyar, CA-G.R. No. 6142, 19April 1951). persons who can perceive, and perceiving, can make known their perception to others, may
14 insa
RuLEsityOF CouRT be witnesses .. ."
. ' Rule 131 • §§ 2 & 3 an d su bsections.
. . . presumption
See, e.g., continuing . of
. o_nce it has been duly established, People v. Elizaga 73 SCRA 524 ("Once a mental 32 RULES OF CouRT, Rule 130, § 20, now§ 22: The rule now includes criminal cases "committed
~nfdition is _shown to have existed, it will be presumed to have ~ntinued provided the condition by one (spouse) against the other or the latter's direct ascendants or descendants."
is 0 a continuous nature Thus where ·
have continued prov·d d. f . l~sam
•ty h '
as been established, it will be presumed to 33 RULES OF CouRT, Rule 130, § 25: "No person may be compelled to testify against his parents,
or proved is o~ly te~ e I1is 0 a c_hromc o~ permanent nature; and if the insanity, admitted
other direct ascendants, children or other direct descendants."
continuan~ does not P?raihoccasional ,_ or intermittent, in its nature, the presumption of its
also applies to sanity ~~se. e pr;sumpllon of the continuance of a condition once established 34 RULES OF CouRT, Rule 130, § 23: "Parties or assignors of parties to a case, or persons in whose
72 scRA _ · ' presump ion of guilt arising from unexplained flight, People v. Extra, behalf a case is prosecuted against an executor or administrator or other representative of
201
a deceased person or agai~st such person of unsound mind, cannot testify as to any matter
15 RULES OF COURT, Rule 133 §§ 1_7 Th . . of fact occurring before the death of such deceased person or before such person became of
in ci~il-cas~s, "proof beyond reaso~abl ese pr~~Is1o~s _cover "preponderan~e of ~viden~• unsound mind."
8
adm1mstrat1ve and quasi-judicial • ~oubt m cnmmal cases, "substanllal evidence in th
the power of the court to stop furt:ses,_ circumstantial" evidence, extrajudicial confessions, 35 RULES OF CouRT ' Rule 130 ' § 24 (a)·· "The husband or wife, during or·cation
after e ~arrdiage,
receive m
. er evidence and evidence on motions. cannot be examined without the consent of the other as to any commum
16 Revised Penal Code, art. 114112 _
73
72 Diokno On Trial: Techniques and Ideals of the Trial Lawyer
Diokno On Trial: Techniques and Ideals of the Trial Lawyer

1111111
 litldiN:i!-i;-
. the marriage except in a civil case by one agal I M•i&Fi&Miili&liliiiilllM:ifilMl11&4:Q
ne trom the other ~unng mmitted by one against the other or the latter' the
confidence by . case for a cnme co
"8!
s d1reet ,,
other or in a cnmina 1 d ts •
descendants or ascen an .
sec.
I 130, 24(b) to (e),
36 RuLES OF CouRT, Ru e f the Rules of court, entitled "Perpetuation of Tesum '
r!y Rule 134 o ony.• •=
37 This Rule was tonne CouRT Rule 24 §§ 1 & 2. THINGS TO File Tab;
k-A. L.lh'~_, CA-t-E ,£_ _-·-- II,

38 RuLEs
OF CouRT Rule 23, §1; RuLES OF
•
•
ct· s 'or failure to serve written interrogatories, and for 'ail
oo-LAW D ~ //', 771Fa't°L.A '-
I I•mpose san 100 ,, "d . ·u ,, ure
39 The present rues d . 100- Section 6 Rule 2 5 provI es. n 1ess thereafter allnw... II
-
req uestfor a miss • • . . rty - """ D AT E
to file and serve d to prevent a failure of Justice, a pa not served with Writt ISSUE As,igrled
·-

"-··....
To Du e Do n~

,~ A.~ =
,, ,,,.
by the court for good ca:e a;pelled by the adverse party to give testimony in open court en NO.

=
-
inte~atories ~y no~dincoappeal.' Section 5, Rule _26 ~rovides: "Unless _thereafter allo~! /l ,I A J --~ ..1
I
to give a deposifi:ci':sue ~nd to prevent a failure of Justice, a party who fails to file and serve
.JI
,_.__ . i.-r::.
'7 · /
by the court for g . . the adverse party of matenal and relevant facts at ussue Which ar A - . :
eq uest for adm1ss1on on I h II t b . e, {/
a rought to be, with"n
or 1 the• personal knowledge of the atter, s a no e permitted to present ·- :,
evidence on such facts.

40 in Payo v. CoUri
Of Appeals G R No L-36809, 24 February 1984, the Supreme Court in
• · · · . d h "( ) (' ) ·
ordering a new trial based on recanted test1mo~dy, declare _t at ~:ar"t mg , thatkcomplainant's
' -
sworn statement constituted impeachment evI ence, ... 11 neve e ess pa~oo of the nature
f material newly discovered evidence that should properly be presented in a new trial. The
~ractice of this Court has been to grant new trials in such very exceptional instances as when
it is made to appear that there was no evidence sustaining the judgment of conviction other •'
than the testimony of a witness who is shown to have made contradictory statements as to
material facts, arid ... that under all the circumstances of the case, proof that the witness had
varied or modified his testimony out of court and after the trial would lead the trial judge to a
different conclusion (citing U.S. vs. Dacir, 26 Phil. 204). See also People v. Montejo, G.R. No. I
133475, 26 March 2001 and Molina v. People, G.R. Nos. 70168-69 , July 24, 1996.

41 RULes OF CouRT, Rule 133, Sec. 6: "The court may stop the introduction of further testimony
upon any particular point when the evidence upon it is already so full that more witnesses to
the same point cannot be reasonably expected to be additionally persuasive. But this power ..
should be exercised with caution."

42 Under th~ Anti-Wir~tapping Law (1965), a recording of a private conversation is deemed

unlawful, if made without the consent of the ail the parties to communication The law states
th
at, "It s_hall_ be unlawful for any person, not being authorized by all the parti~s to any private
communication or spoken word, to tap any wire or cable or by using any other device or
~Yrran~emednt, ~o secretly overhear, intercept, or record su~h communication or spoken word I,
I
using a ev1ce commonly know d. h lk'
talkie or tape- d n as a ictap one or dictagraph or detectaphone or wa Ie-
amended. recor er, or however otherwise described .. .." Republic Act No. 4200 (1965), as

,
.. - "
-
Figure 27. Things to Do _ Law (Form 3) with Senator D1okno s handwntten entnes m relation to a
. .

human rights case he handled during martial law.

74
Diokno On Trial: Techn~· :;::::-=-;-:-- - - -
1ques and Ideals of the T~I Lawyer 75
Diokno On Trial: Techniques and Ideals of the Trial Lawyer