Death or absence of a witness completion of this cross examination became an

impossibility.
[G.R. No. L-48883. August 6, 1980.]
The petitioner filed with the court a motion praying for a
THE PEOPLE OF THE PHILIPPINES, petitioners, vs. ruling on the admissibility of the testimony of deceased
HON. ALBERTO V. SENERIS, As District Judge, Court of witness Mario. The respondent judge issued an order
First Instance, Branch II, Sixteenth Judicial District, declaring as inadmissible the entire testimony of the
Zamboanga City and PILLAR ANGELES DE PIMENTEL, deceased witness Mario on the principal ground that the
respondents. defense was not able to complete its cross examination of
said witness relying on the case of Ortigas v. Lufthansa.
FACTS: an information for parricide was charged to
respondent Pilar angeles as principal by inducement, ISSUE:
Mario Nemenio and Salim Doe as principals by direct 1. Whether or not respondent judge gravely abused its
participation and Moises Julkanain as accomplice, in the discretion in ruling as inadmissible the testimony of
fatal stabbing of Eduardo Pimentel, the lawful husband of prosecution witness Mario Nemenio.
private respondent. 2. Whether or not respondent’s judge full reliance on the
Lufthansa case can be sustained.
In this case, the accused Mario entered on arraignment a 3. Whether or not there is merit in the contention of the
plea of guilty. Respondent judge thereafter rendered a petitioner that the questioned testimony of the deceased
judgment convicting the accused Mario of murder. witness is admissible in evidence because the private
Immediately after promulgation of judgment, accused respondent counsel had already rigorously cross examined
Mario offered to testify against his co accused, herein Mario Nemenio.
private respondent, in her separate trial.
HELD:
Allowed, he testified as prosecution witness and as 1. Yes.
summarized by the petitioner, his testimony on direct
examination contained that “he and Salim were HIRED by As a general rule, the testimony of a witness given on direct
respondent Pilar Angeles de Pimentel, for the examination should be stricken where there is not an
consideration fo P3,000 to kill Eduardo Pimentel, husband adequate opportunity for cross examination, as where the
of respondent Pilar in the latter’s residence in Zamboanga witness by reason of his death, illness or absence cannot
City. And that, it was respondent Pilar, who ACTUALLY be subjected to cross examination. The direct testimony of
pointed out the victim Eduardo to the witness Mario a witness who dies before conclusion of the cross
Nemenio who then stabbed the said victim to death. examination CAN be stricken only insofar as not covered
by the cross-examination and absence of a witness is NOT
After the prosecution had terminated the direct enough to warrant striking his testimony for failure to
examination of its witness Mario Nemenio, counsel for the appear for further cross examination where the witness has
private respondent moved for the holding in abeyance of already be sufficiently cross examined or the matter on
the cross examination of the said prosecution witness until which further cross examination is sought is not in
after he shall have furnished with the transcript of controversy.
stenographic notes. The same was granted by judge who
ordered the resumption of hearing on April 19, 1978. But On the other hand, when the cross-examination is not and
on said date the prosecution witness failed to appear cannot be done or completed due to CAUSE
because he was not served with a subpoena. ATTRIBUTABLE TO THE PARTY OFFERING THE
Consequently the hearing was reset for June 7. WITNESS, as was the situation in Lufthansa relied upon by
the respondent judge, the uncompleted testimony is
On June 7, counsel for private respondent commenced his hereby rendered incompetent and inadmissible in
cross examination of prosecution witness Mario, which evidence.
cross examination however was not completed for lack of
material time. Thus, the hearing was adjourned and Until such cross-examination has been finished, the
resumed on July 3. testimony of the witness cannot be considered as complete
and may not, therefore, be allowed to form part of the
According to the petition, the uncompleted cross evidence to be considered by the court in deciding the
examination reduced in f53 pages of transcript HAD case. HOWEVER, we likewise therein emphasized that
ALREADY TOUCHED ON THE CONSPIRACY existing where the right to cross-examine is LOST WHOLLY OR IN
among Salim Doe, Mario and respondent Pilar, to kill PART THROUGH THE FAULT OF THE CROSS
Eduardo Pimentel. EXAMINER, then the testimony on direct examination MAY
be taken into account. BUT when cross examination is not
Continuation of the cross examination was set for July 3, and cannot be done due to causes attributable to the party
however Mario was shot dead by the Police while allegedly offering the witness, the uncompleted testimony is thereby
escaping from the San Ramon Prison and Penal Farm in rendered incompetent.
Zamboanga City, where he was serving his sentence. The
Further, where the death or illness prevents cross already substantially accomplished the purpose of the
examination under such circumstances that no cross examination and therefore, the failure to pursue
responsibility of any sort can be attributable to EITHER the further the cross examination WOULD NOT adversely
witness of his party, it seems harsh measure to strike out affect the admissibility of the direct testimony of said
all that has been obtained on direct examination. witness anymore.

While the right to confrontation and cross-examination is a NOTE:

fundamental right, We have ruled that the same CAN BE In all criminal prosecutions, the accused shall enjoy the
WAIVED expressly or impliedly by conduct amounting to a right to meet the witnesses face to face. Echoing the same
renunciation of the right to cross examination. guarantee, Section 1 (f) of Rule 115 of the Rules of Court,
provides that in all criminal proceedings the defendant shall
The common basic principle underlying the application of have the right to be confronted at the trial by, and to cross-
the rule on implied waiver is that the party was given the examine the witnesses against him. Constitutional
opportunity to confront and cross-examination an opposing confrontation requirements apply specifically to criminal
witness BUT failed to take advantage of it for reasons proceedings and have been held to have two purposes
attributable to himself alone. Thus, where a party has had First, to secure the opportunity of cross-examination, and
the opportunity to cross-examine a witness but failed to Secondarily, to obtain the benefit of the moral impact of
avail himself of it, he necessarily forfeits the right to cross- the courtroom atmosphere as it effects the witness’
examine and the testimony given on direct examination of demeanor.
the witness will be received or allowed to remain in the
record. Emilio dela Paz vs IAC | Gutierrez, Jr, J
G.R. No. 71537, September 17, 1987|
2. NO. it cannot be sustained.
FACTS
While the cross examination of the witness in the Lufthansa  Loreto de la Paz filed a complaint against the
case were both uncompleted, the causes therof were petitioners for a judicial declaration of ownership of a
different. In the present case it was the death of the 43,830 square meter parcel of land covered by Original
witness, in Lufthansa case, it was the unjustified and Certificate of Title No. 901 in the name of Ponciano de
unexplainable failure of Lufthansa to present its witnesses la Paz
on scheduled date for his cross examination which had  Loreto alleged that the subject parcel of land was
already been preceded by several postponements, thus among the properties adjudicated to her and her
depriving the other party the opportunity to complete the mother as a result of a partition submitted by the heirs
cross examination of said witness. of Ponciano de la Paz and approved by the court in
Civil Case No. 1399.
Lufthansa ruling therefore applies only of there is a finding  The subject matter of Civil Case No. 1399 was
that the cause for non completing of the cross examination Ponciano's testate estate.
for a witness was attributable to the very party offering the  In their answer, the petitioners denied that the disputed
said witness. Consequently, the same is inapplicable to the lot was among the properties adjudicated to Loreto and
instant action as the cause for the non-completion of the her mother. They claimed that the parcel of land was
cross examination of petitioner’s witness was a fortuitous not accounted for in the probate proceedings but is
event as he was killed by the law enforcers after his actually community property of the parties.
escape from prison.  The parties, except for petitioner Enrique de la Paz,
were admittedly compulsory heirs of Ponciano de la
3. Yes. There is merit in the contention of the petitioner that Paz who died in 1916
the questioned testimony of its deceased witness is
 Loreto was the only legitimate child of Ponciano
admissible in evidence because private respondent’s
 As regards petitioner Enrique de la Paz, Loreto denied
counsel had already “rigorously and extensively cross
his claim that he is one of the heirs of Ponciano. The
examined witness Mario on ALL ESSENTIAL ELEMENTS
petitioners, however, allege that he is also a
of the crime of parricide, all of which have been testified
compulsory heir of Ponciano, he being the son of
upon by said witness in his direct examination in chief and
Ponciano de la Paz, Jr., the eldest child of the
consequently, the cross examination in chief has already
decedent.
been concluded.
 Loreto took the witness stand. She finished her direct
The cross examination was completed insofar as the testimony on March 12, 1984.
essential elements of the crime charged – parricide, fact of  On April 25, 1984, the petitioners' counsel began his
killing is concerned. What remained was merely cross- cross-examination of Loreto. The cross-examination
examination regarding price or reward which is not an was, however, not completed.
element of parricide, but only an aggravating circumstance.  The petitioners' counsel moved in open court for the
continuance of the cross-examination on the ground
From the foregoing discussion, it is submitted that the that he still had to conduct a lengthy cross-
rigorous and searching cross examination of witness Mari examination.
practically concluded already the cross examination or has
 On May 18, 1984, Loreto's counsel filed a motion for parties in civil cases less constitutionally based, for it
"correction of transcript" due to some errors in the is an indispensable part of the due process guaranteed
transcript of stenographic notes taken during the direct by the fundamental law. ... Until such cross-
testimony of Loreto. The motion was granted. examination has been finished, the testimony of the
 This order granting the correction prompted the witness cannot be considered as complete and may
petitioners'' counsel to manifest that he would not be not, therefore, be allowed to form part of the evidence
able to undertake the cross-examination of the witness to be considered by the court in deciding the case.
as scheduled. The trial court postponed the trial of the  But also, it is ruled that it is not an absolute right which
case to May 31, 1984 and later to July 5, and 11, 1984 a party can demand at all times.
 Trial resumed. The petitioners' counsel, however,  The right is a personal one which may be waived
asked for still another postponement of the cross- expressly or impliedly by conduct amounting to a
examination to give him a chance to go over the renunciation of the right of cross-examination. Thus,
stenographic notes. where a party has had the opportunity to cross-
 During the scheduled trial on September 14, 1984, examine a witness but failed to avail himself of it, he
neither the petitioners, nor their counsel appeared necessarily forfeits the right to cross-examine and the
despite due notice. Loreto's counsel, therefore, filed a testimony given on direct examination of the witness
motion that she be allowed to present evidence ex will be received or allowed to remain in the record.
parte before a commissioner.  In the case at bar, the petitioners' failure to cross-
 Despite this development, the petitioners upon their examine Loreto was through no fault of the
motion were allowed to cross-examine Loreto. respondents. As can be gleaned from the record,
 On the scheduled hearing however, the petitioners' Loreto was available for cross-examination from the
counsel failed to appear, and the cross-examination of time she finished her direct testimony on March 12,
Loreto was deferred for the fourth time. 1984
 Finally, on November 7, 1984, the petitioners' counsel  The petitioners not only kept on postponing the cross-
resumed his repeatedly postponed cross-examination examination but at times failed to appear during
of Loreto. The cross-examination was, however, cut scheduled hearings.
short and rescheduled again on motion of the  The postponement of the trial on May 23, 1984 to a
petitioners' counsel. later date due to the correction of the stenographic
 Unfortunately, Loreto died on December 1, 1984. An notes of Loreto's testimony may be justified, but the
amended complaint was filed for the purpose of same cannot be said for the subsequent
substituting the respondents as heirs of Loreto postponements requested by the petitioners.
 The petitioners moved verbally to strike off the record  Under these circumstances, we rule that the petitioners
the entire testimony of Loreto. The motion was denied. had waived their right to cross-examine Loreto.
Thus, they filed a petition before the IAC, however the Through their own fault, they lost their right to cross-
same was also denied. examine Loreto. Her testimony stands.
 The petitioners contend that the appellate committed
grave abuse of discretion when it sanctioned the trial
court's orders which denied the striking out of the IMPEACHMENT OF A WITNESS
testimony of original plaintiff Loreto de la Paz from the PEOPLE OF THE PHILIPPINES vs. WINSTON DE
record. GUZMAN
G.R. No. 122740 | March 30, 1998 | Regalado, J.
ISSUES & ARGUMENTS
 W/N petitioners were deprived of their right to FACTS:
cross examination when the court denied their June 9, 1994 (2pm): While 14-year-old JOVELYN A.
motion to strike off the record, the testimony of GERAM was sleeping alone in their residence at Barangay
Loreto Monserrat, Governor Generoso, Davao Oriental she was
awakened by the weight of DEFENDANT WINSTON DE
HOLDING & RATIO DECIDENDI GUZMAN on top of her, who was then naked.
● JOVELYN tried to shout for help but WINSTON
NO. covered her mouth and nose with his hand and
 Well settled is the rule that the right of a party to warned her not to resist or she would be killed.
confront and cross-examine opposing witnesses in a ● Upon recovering, JOVELYN discovered that
judicial litigation, be it criminal or civil in nature, or in WINSTON was gone and she was already
proceedings before administrative tribunals with quasi- undressed. She saw blood on her vagina and
judicial powers, is a fundamental right which is part of white fluid on her abdomen and thighs.
due process.
 The right of a party to cross-examine the witness of his JOVELYN recounted her ordeal at WINSTON’s hands to
adversary in invaluable as it is inviolable in civil cases, neighbors, Mauricia and Hugo Bayno, then to Genesis
no less than the right of the accused in criminal cases. Delgado.
The express recognition of such right of the accused in
the Constitution does not render the right thereto of
 ● When her parents returned from fishing, proper foundation or predicate has been duly laid by
JOVELYN’s mother, Evelyn Geram could only cry the party against whom said witness was called.
as the former related the incident to her. ● Rule 132, Sec. 13. How witness impeached by
evidence of inconsistent statements. - Before a
JOVELYN and her mother subsequently went to the witness can be impeached by evidence that he has
barangay captain of Monserrat who advised them to report made at other times statements inconsistent with
to the police authorities of Sigaboy, Governor Generoso. his present testimony, the statements must be
● Afterwards, she and her mother proceeded to the related to him, with the circumstances of the times
municipal hospital for physical examination. Dr. and places and the persons present, and he must
Divina Lopez, a resident physician of the Municipal be asked whether he made such statements, and
District Hospital of Governor Generoso, issued a if so, allowed to explain them. If the statements be
medical certificate detailing the finding of (1) blood in writing they must be shown to the witness before
cloths in labia minora, (2) ruptured hymen, and (3) any question is put to him concerning them.
redness around the vulvar area.
Although the whole record of the preliminary examination
WITNESS Genesis Delgado declared that he saw was offered in evidence by the defense and admitted by
WINSTON going inside the house of JOVELYN on June 9 the trial court, such previous statements cannot serve as
at around 2PM through the kitchen door at the rear portion bases for impeaching the credibility of a witness unless
of the house, leaving 2 hours later. his/her attention was first directed to the discrepancies and
● Another witness, Enecita dela Cruz Torion, a was then given an opportunity to explain them.
teacher in Monserrat Elementary School, also ● Without such explanation, whether plausible or
testified that she saw WINSTON, together with 2 not, Court is left with no basis to evaluate and
companions, sitting at the front porch of the assess his/her credibility on the rationale that it is
Gerams’ house at about 1PM of June 9, 1994. only when no reasonable explanation is given by a
witness in reconciling his conflicting declarations
WINSTON’s defense is denial and alibi, which the Court is that his credibility should be deemed impeached.
not persuaded to grant any credence thereto since the
facts relied on to make out his story obviously appear too People vs. Resabal: The mere presentation of the prior
pat as to have clearly been contrived, being corroborated declarations of a witness without the same having
only by his own parents’ story. been read to the witness while he was testifying in
● WINSTON claimed that he was in Davao City since court is insufficient for the desired impeachment of his
June 6 with his mother to attend to his sister-in-law testimony.
who was confined. After she was discharged on
June 8, they went to his sister’s house at Sasa, SC: The rule which requires a sufficient foundation to be
Davao City where they stayed until 4:30AM of June first laid before introducing evidence of inconsistent
statements of a witness is founded upon common sense
10.
and is essential to protect the character of a witness.
● His memory is refreshed by the necessary
LOWER COURT FOUND WINSTON GUILTY, giving
inquiries, which enables him to explain the
credence to JOVELYN’s testimony and disregarding
WINSTON’s defense of denial cum alibi. statements referred to, and to show that they were
● He was sentenced with reclusion perpetua and to made under a mistake, or that there was no
indemnify Jovelyn P40,000. discrepancy between them and his testimony.

SC: It is evidentiarily proscribed to discredit a witness

ISSUE: on the bases of purportedly prior inconsistent
W/N DEFENDANT WINSTON IS GUILTY OF RAPE- YES statements which were not called to the attention of
that witness during the trial, although the same are
RATIO: supposedly contained in a document which was
WINSTON’s ARGUMENT: JOVELYN stated in her merely offered and admitted in its entirety without the
complaint and testimony during preliminary investigation requisite specifications.
that he used odorous chemicals over her nose and mouth
to sleep BUT in the trial court she merely claimed the crime ITC, JOVELYN was never confronted during the
was consummated through force and intimidation. proceedings in the trial court with her alleged testimony at
● Such inconsistency destroys her credibility, thus the preliminary investigation regarding WINSTON’s resort
warranting a reversal of his conviction. to sleep-including chemicals.
● In fact, no sub-markings for such particular
SC: A witness cannot he impeached by evidence of answers as exhibits were made in the records of
contradictory or prior inconsistent statements until the her testimony in the preliminary investigation,
 much less offered by WINSTON’s counsel for that
purpose during the trial of the case
● Hence, as things stand before us and the court a
quo, JOVELYN’s credibility remains unimpeached.
● We confirm the validity of the doctrine in Villaruel
vs. Bascon that, unless the proper predicate is
laid during the trial by calling the attention of a
witness to his alleged inconsistent statements
given outside of his testimony in court and
asking him to explain the contradiction, the
supposed inconsistencies cannot be pointed
out on appeal for the purpose of destroying the
credibility of the witness.

Similarly, WINSTON cannot rely on JOVELYN’s complaint

since records show that said complaint was never
introduced in evidence for the consideration of the trial
court nor shown to her during the trial so that she could
explain the alleged discrepancies in accordance with the
foregoing rule.
● The complaint is not even included in the folder of
exhibits as part of the documents admitted in
evidence by the trial court.
● It is only attached to the original record of this case
together with the other records of the preliminary
investigation forwarded to the trial court.
● Under the revision in the 1985 Rules of Criminal
Procedure, those records of the preliminary
investigation do not form part of the record of the
case in the RTC.

RULING:
WHEREFORE, the judgment of the court a quo is hereby
AFFIRMED, with the MODIFICATION that the indemnity to
be paid by accused-appellant Winston de Guzman is
increased to P50,000.00 in accordance with the present
case law thereon.