COURT TESTIMONY

INTRODUCTION
1. The Essential Trial Technique:
Each lawyer may have different trial technique, as there is no fixed and
hard rule on how to go on trial. However, each one believes that the most important
technique is to plan the trial in advance. A trial plan may be simple or elaborate.
a. Visual Trial Plan – one that can be kept purely in mind; and
b. Written Trial Plan - one reduced in writing. Trial plan is only
guide of the lawyer which may be followed closely, modified or abandoned as the
order of trial of the case progresses.
THE ACTIONS
A civil action is one by which a party sues another for enforcement or
protection of civil rights, or the prevention or redress of wrong, which may either be
ordinary or special [Sec. 3 (a), Rule 1, RRC].
It commences by the filing of the original complaint in court (Sec.
5,Id.) of competent jurisdiction (BP Blg. 129; R.A 7691). A cause of action is the act
or omission by which a party violates a right of another (Sec. 2, Rule 2, RRC). It
pertains to the allegation of ultimate facts in a pleading (Sec. 1, Rule 8, RRC). Its
elements are:
1. the legal right of the plaintiff;
2. the correlative obligation of the defendant;
3. the act or omission of the defendant in violation of said legal right.
(Diaz vs. Diaz, 331 SCRA 302)
A right of action is a remedial right, depending on the substantive law
belonging to some persons (Marques vs. Varela, 92 Phil. 375)
A criminal action is one by which the state prosecutes a person for an
act or omission punishable by law (Sec. 3(b), Rule 1 RRC). It shall be initiated by
filing a written complaint or information, with proper office or court, in the name of
the People of the Philippines, and against all persons who appear to be responsible for
the offense involved (Sec. 1 & 2, Rule 110, RRC).
An offense is either generally a crime or restrictedly a felony. A felony
is an act or omission punishable by law (Art. 3, RPC). It is a specific crime punishable
under the RPC.
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A crime is generally an act or omission violating a special penal law,

statute or a municipal ordinance, or any offense as defined and penalized under the
RPC.
All felonies are crimes, but no all crimes are felonies. If a civil action
must be based on a cause of action (Sec. 2, Rule 1, RRC) by analogy, a criminal action
must also be based on a cause of accusation having its three (3) elements: (1) the legal
authority of the state; (2) the correlative obligation of the accused; and (3) the act or
omission of the accused violating said legal authority (Sec. 9, Rule 110, RRC). This
third element certainly refers to the elements of the crime.
In the institution and prosecution of both civil and criminal actions, the
plaintiff may encounter the adverse party’s valid defenses, such as: (a) the grounds of
a motion to dismiss (Sec. 1(a) to (j), Rule 16) or a motion to quash (Sec. 3(a) to(i),
Rule 117); (b) the grounds of objection to the examiner’s oral offer, to the examiner’s
questions, to the witness’ answers, and to the admissibility of the object, real,
demonstrative or documentary exhibits (Sec 3, Rule 128, Rule 130 & 132); and (c)
the grounds of a demurrer to evidence (Sec. 1, Rule 33 & Sec. 23, Rule 119)
If a defense relied on is based on law, the pertinent provision thereof
and their applicability to him shall be clearly and concisely stated (Sec. 1, par. 2, Rule
8)
On the other hand, if a defense is based on facts, the defendant must
specify each material allegation of fact the truth of which he does not admit and,
whenever practicable, shall set forth the substance of the matters upon which he relies
to support his denial.
In a criminal case, a denial or a defense (whether based on facts or
law) shall be manifested in open court, because the accused must be arraigned in open
court, must be present at the arraignment, and must personally enter his plea. A plea
of not guilty shall be entered for him, if he refuses to plead, or makes a conditional
plea, or pleads guilty but presents exculpatory evidence, or withdraws his
improvident plea (Sec. 1 (a) to (d), nd Sec. 5, Rule 116)
THE TRIAL
Trial is the period of the introduction of evidence by both parties.
Witnesses are presented to give testimonial evidence and cross-examined by the
opposing party. The order of examination of the witness are as follows:
a. Direct examination by the proponent;
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b. Cross-examination by the opponent;

c. Re-direct examination by the proponent;
d. Re-cross-examination by the opponent.
Before a witness testifies, his testimony must first be formally offered
as to the purpose.
After the testimony of the last witness, objects and documentary
evidence are formally offered, either orally or in writing, stating the purpose for
which they are offered.
After plaintiff’s presentation of evidence, it is deemed to have rested
its case, and it is now the turn of the defendant to present evidence. However, the
defendant has an option to file a demurrer to evidence, if he believes that the evidence
for the prosecution is insufficient to prove his guilt beyond reasonable doubt. If his
demurrer is granted, then the case is ordered dismissed and the accused is acquitted.
However, if the demurrer is denied, the accused may present evidence for his defense,
if he has filed a motion for leave of court to file demurrer to evidence, otherwise, his
right to present evidence is deemed waived and forfeited.
After presentation of defendant’s evidence, the prosecution may
present rebuttal evidence and the accused may likewise present sur-rebuttal evidence.
Thereafter, the court may allow the parties to submit memoranda, except in cases
falling under the rules on summary procedure.
The order of trial, however, may be modified by conducting first a
preliminary hearing of defendant’s affirmative defense (Sec. 6, Rule 16) or reversed
by hearing first the accused’s affirmative defenses (Sec. 11(e), Rule 119), both in
court’s discretion.
Thus, appeal from order denying motion to reverse order of trial is not
proper (PP vs. Marcial, G.R. No. 1528654-65, 9/27/06). Moreover, the conduct of
trial is under judge’s control, and as how to apply the rules depends to some extent
upon his own interpretation of such rule (Dizon vs. De Borja, 37 SCRA 46).
THE JUDGMENT/DECISION
Judgment is the adjudication by the court that the accused is guilty or
not guilty of the offense charged and the imposition on him of the proper
penalty and civil liability, if any. It must be written in official language,
personally and directly prepared by the judge and signed by him and shall
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contain clearly and distinctly a statement of the facts and the law upon which it
is based.
Basically no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is
based (Art. VIII, Sec. 14, 1987 Phil. Constitution).
No decision (opinion) shall be issued without the judgment
(dispositive part). The latter is the final order while the former is merely a
statement ordering nothing (Velarde vs. SSS, G.R. No. 159357, April 28, 2004)
A valid written decision/judgment shall consist of three (3) essential
parts:
1. The body – the court’s legal opinion or ratio decidendi stating
clearly and distinctly the facts and the law upon which it is based;
2. The dispositive portion – the court’s judgment (City of Manila vs.
Entote, 57 SCRA 744), which disposes the case and declares or settles the rights and
obligations of the parties (Espiritu vs. CFI of Cavite, 166 SCRA 394); and
3. The signature of the judge who directly and personally prepared
the judgment, written in an official language, and filed with the clerk of court.
In essence a judgment or decision is a clear and distinct application of
the substantive law to the clear and distinct facts of the case or defense. These facts are
nothing but the TRUTH.
THE CHANNELS OF TRUTH
The “channels of truth” alluded in the opening ecumenical prayer
before the start of court’s session are undoubtedly the witnesses testifying in court,
under oath or affirmation (Sec. 1, Rule 132) “to tell the truth and nothing but the
whole truth”. Considering that the witnesses must answer to counsels’ questions (Sec.
3, Rule 132), the examining counsels are also the channels of truth.
Further, the courts admitting and weighing the evidences in
ascertaining the truth respecting a matter of fact (Sec. 1, Rule 128), are the channels
of truth.
Likewise, the court’s personnel are the channels of truth because they
are assisting the court in the management and disposition of cases.

THE CONTEXT OF TRUTH

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One context that we humans live in is the context of fact. This is shown
by the way how we make our statements. What we say can be judged to be true or
untrue in terms of this realm of fact – in the way how we utter the words coupled with
our own gestures. If I say, for example, that “it is raining” my statement can be judged
to be true or false on the factual situation in which we live. My statement is true if, as a
matter of fact, it is raining. Such statement of fact possesses objectively since it stands
independent of my personal judgment.
A second context that verifies many of our human statements is that of
experience. Such a context goes beyond facts since our human experience includes
meaning, value, beauty, morality (obligation and guilt) and holy.
Another context in which we humans live is the realm of
mathematics, a context which objective and communal truth can be affirmed.
There are also context of science which give a basis for the truth or
non-truth of many of our statements.
A further context of truth is that of religion. Any human religion has a
certain tradition made up of certain documents, forms of worship and teaching. The
religious truth that “God created the world” can be substantiated by reasons that are
presented.
Another realm that gives a basis for true statement is the realm of
philosophy. Some truths of philosophy are true because they are self-evident .
There is a type of philosophy where truth is based on the logic of
certain process of thinking. The conclusion of a correct syllogism, for instance, is true
because it follows a logical process which is valid, arguing from the premises of that
syllogism to its conclusion.
In sum, the contexts of truth may be factual, experiential, scientific,
mathematical, religious, and philosophical.
Human knowledge or understanding includes the field of law and it is
in that context which supports the truthfulness of the statements made by a witness in
a court proceeding.
THE LEGAL TRUTH
The legal truth, like in other contexts of truth, is also complex. It is of
three (3) kinds:
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1. Legislative Truth – The provision in a particular act are true

because right and justice are intended by the law-making body to prevail (Art. 10,
NCC).
2. Administrative Truth – The actions, proceedings and statements
made by the executive branch of the government, its departments , agencies and
instrumentalities are true because of the legal presumption that official duties are
regularly performed (Sec. 3(m), Rule 131, RRC), and executed according to the laws
and the Constitution (Par 3, Art 7, NCC).
3. Judicial Truth – The clear and distinct statements of fact and law in
a judgment are true because the facts to which the law being applied are duly
ascertained in a judicial proceeding according to the means sanctioned by the rules or
law.
In any judicial proceeding, the witness’ statements of facts which
appear to be true according to their own beliefs, personal views, or novel contexts of
truth, must be reduced to the truth of law, or clarified and proved pursuant to the
Revised Rules on Evidence. Evidence as defined under Rules of Court, is the means
sanctioned by these rules of ascertaining in a judicial proceeding the truth respecting a
matter of fact (Sec. 1, Rule 128), judicially conceived as “judicial truth” (Cf. Flores v.
CA, 259 SCRA 618).
Let’s take again the different contexts of truth in relation to the
context of judicial truth through the following examples:
Factual Truth:
The witness’ statement of fact that the accused-minor stabbed another
minor with the use of a kitchen knife is legally true when the witness testifies
according to his personal knowledge, that is, derived from his own perception. It is
untrue when the witness merely testifies as to what was told to him by another person
(Sec. 36, Rule 130, RRC). The latter cannot be considered true because under the
precepts of the law it is considered as hearsay.
Experiential Truth:
The test to determine the value of the testimony of a witness is whether
such testimony is in conformity with knowledge and consistent with experience of
mankind. Whatever is repugnant to these standards becomes incredible and lies
outside of judicial cognizance. Evidence to be believed must not only come from the
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mouth of a credible witness but must also be credible in itself (People vs. Patano,
G.R. No. 129306, March 14, 2003. CDSCD, p. 636)
Scientific and Mathematical Truth:
These become the legal truths after the court allows the expert witness
possessing special knowledge, skill or training to give his opinion on a special matter
in issue (Sec. 49, Rule 130), and after such testimony is offered and duly considered
in evidence (Sec. 34 &35, Rule 132).
Religious Truth:
The Ten Commandments of God and other religious teachings are
already contained in our Revised Penal Code, Civil Code, Muslim Code, Agrarian
Reform Code, Bldg. Code, Labor Code, Tax Code, Election Code, Environment
Code, Rules Court, etc.
Philosophical Truth:
Its five (5) types: self-evidence, logic, reason, coherence, and human
experience, have been made as basis of the Rules on Evidence, Revised Rules of
Court.
For instance, Rule 129, Sections 1-4, on judicial notices and judicial
admissions; Rule 130, Sections 26-35, on admissions, confessions, conduct and
unaccepted offer; and Rule 131, Sections 2-3, on legal presumptions are rooted from
the self-evident type of philosophical truth.

Rule 132, Section 15, on exclusions and separation of witnesses on the

other hand belongs to the coherent type of philosophical truth. It fits or jibes with the
other context of truth – the religious truth. The book of Susana tells us that the two
complaining witnesses against respondent Susana were directed to testify exclusively
and separately (Dn. 13:51- 59,NAB).
Rules 130, Section 49, on expert witness’ opinion belongs to the
reasoning type of philosophical truth, as the witness is required to give reasons of his
expert testimony. Moreover, Rule 131, Section 1, on burden of proof, and Rule 133,
Section 1-7, on weight and sufficiency of evidence also belong to the reasoning type
of philosophical truth. The facts in issue require sufficient supports or reasons.
Rule 130, Section 50, on ordinary witness’ opinion belong to the experiential type of
philosophical truth. The witness testifies merely on the basis of his familiarity,
knowledge and acquaintance of a matter in issue.
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Other sections of Rule 130, on the presentation of evidence, also belong

to the logical type of philosophical truth. The testimonial, object or documentary
evidence presented requires the prior established evidence. Otherwise, it is generally
objectionable for being improper, incompetent or irrelevant. Specially it is
objectionable for lack of foundation or no basis at all.
THE HYPOTHESIS OF A CASE/DEFENSE
The hypothesis of a case is a provisional application of “the law or rule
of reason to the existing conditions” or facts of the case, which the investigating
counsel has gathered from his client and probable witnesses.
PROBLEM: Mr. A sold to Mr. B a parcel of land presently occupied by Ms. C.,
claiming as co-heir of Mr. A, who refused to vacate the subject land, despite of Mr.
B’s several letters of demand to vacate therefrom.
QUESTIONS: What is the legal remedy of Mr. B against Ms. C? What about Mr. A,
what is his remedy? After considering all the state of facts or existing conditions of a
case, which of Mr. B’s tentative legal remedies is the most appropriate? As to Ms. C,
what would be her tentative provisional theory, or hypothesis of defense?
Supposed Ms. C stabbed Mr. B with a kitchen knife inside her house, what would be
her probable defense? Denial? Alibi? Self-defense? Misidentification of her identity?
Frame-up? Defense of right to property? Accident? or Illness?
Once a hypothesis is finally selected by the counsel as the most legally
feasible for his client’s case or defense, this becomes a party’s definite legal theory.
THE PARTY’S DEFINITE LEGAL THEORY
The party’s definite legal theory is the counsel’s definite application of
the law to the facts of a case or defense.
As a rule, a party who deliberately adopts a certain theory upon which
case is tried and decided by the lower court will not be permitted to change theory on
appeal. Points of law, theories, issues and arguments not brought to the attention of the
lower court need not be, and ordinarily will not be, considered by the reviewing court,
as these cannot be raised for the first time at such late stage (PPA vs. City of Iloilo,
G.R. No. 109791, July 14, 2003, CDSCD, P. 100).
In said case, respondent City of Iloilo sought to collect from Petitioner
PPA real property tax and business taxes . It alleged that petitioner is engaged in the
business of arrastre and stevedoring services and the leasing of real estate; and it is a
declared and registered owner of a warehouse used in its business operation.
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In its pleading therein, the petitioner PPA argued that as government-

owned corporation it is exempt from paying real property taxes by virtue of its
exemption in its charter. Sec. 40, RPTC and Executive Order No. 90. Subsequently, in
its memorandum, it alleged that it is a government instrumentality, which may not be
taxed by the LGU.
The court a quo rendered a decision holding petitioner PPA liable for
real property taxes x x x and for business taxes with respect to petitioner’s lease
of real property, but not on petitioner’s arrastre and stevedoring services as these
form part of its government function.
On appeal, petitioner PPA contested on the taxability of its warehouse
and argued that it is part of the “port constructed by the State”; it is a property of public
dominion (Art. 420 (1), NCC; Sec. 3 (e), PPA Charter. But this thesis (the fact of State
Ownership) was never presented at the trial, which justified disallowance of
petitioner’s new theory. Further, no proof was adduced during the trial that the
warehouse was constructed by the State, which would qualify the same as “Property of
public dominion.”
Therefore, the subject warehouse being owned by petitioner itself, and
not by the State, it is taxable by the respondent City of Iloilo, Changing its theory
(from Corporate ownership to State ownership) on appeal would thus be unfair to
respondent and offend the basic rule of fair play, justice and due process; a party’s
theory may be changed on appeal when the factual bases thereof would not require
presentation of any further evidence by the adverse party in order to properly meet the
issue raised in a new theory (Ibid, citing Lianga Lumber Co. v. Lianga Timber C., Inc.

76 SCRA 197)

Actually, the petitioner PPA in this case was raising a question of fact,
and not merely a question of law.
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Whenever a question of law has been resolved on appeal and once a

decision attains its finality, whether it is erroneous or not, it becomes the law of the
case (Enriquez v. CA, 202 CRA 487)
THE LAW OF THE CASE
The law of the case, as applied to a former decision of an appellate
court, merely expresses the practice of the courts in refusing to reopen what has been
decided. It differs from res judicata in that the conclusiveness of the first judgment is
not dependent upon its finality. It relates (1st) entirely to question of law and (2nd) is
confined in its operation to subsequent proceedings (3rd) in the same case (Mun. of
Daet vs. C, 93 SCRA 521, Moreno, Phil Law Dictionary).
Whatever is once irrevocably established as the controlling LEGAL
RULE of decision between the same parties in the same case continues to be the
LAW OF THE CASE, whether correct on general principles or not, so long as the
facts on which such decision was predicated continue to be the facts of the case before
the court (People v. Pinuila, 102 Phil. 999)
Or when the court’s decision/judgment is not appealed and allowed to
become final, it becomes the law of the case and it cannot be set aside by the judge
(Masa vs. Baes, 28 SCRA 263).
In conclusion, the Hypothesis of the Case or the Provisional Legal
Theory is the tentative legal opinion of the investigating counsel applying the rule of
the law to the facts of the case/defense; whereas, the Definite Legal Theory is
generally the permanent legal opinion of the trial lawyer applying the rule of law to
the facts of the case/defense; and while the Law of the Case is generally the
irrevocable legal opinion or ruling of the court applying clearly and distinctly the
rule of law to the clear and distinct facts of the case is a doctrine of irrevocability of
the court’s final and executory judgment, whether correct on general principles or not.
The doctrine of the law of the case is a rule of practice and not a
principle of substantive law. It expresses the practice of the courts generally to refuse
to reopen what has been previously decided in the same case, and is binding on every
tribunal dealing with, except one cloth with the power to overrule and finally declare
the law to be otherwise. It is founded on public policy, in the interest of orderly
judicial procedure, and is of special significance as applied to questions of law as
distinguished from decisions on questions of fact. (Santos vs. Ruiz, SP-00509,
10/15/71)
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A question of fact exists when the doubt or difference arises as to the

truth or falsehood of facts or when the query invites calibration of the whole evidence
considering mainly the credibility of witnesses, the existence and relevancy of specific
surrounding circumstances, as well as their relation to each other and to the whole,
and the probability of the situation.
A question of law exists when the doubt or controversy concerns the
correct application of law and jurisprudence to a certain set of facts; or when the issue
does not call for an examination of probative value of the evidence presented , the
truth or falsehood of facts being admitted (Gomez vs Montalban, G.R. No. 174414).
Commendably, it is a good policy for all trial lawyers: a) to prove in
court the same acts or omission constituting a cause of action/accusation or defense as
defined by law and as alleged in their pleadings; b) to tackle the same factual and
legal issues as defined in the court’s pre-trial order; c) to consistently rely, in the
entire period of trial (even on appeal), the same applicable rule of law (PPA vs. City
of Iloilo), and not on two (2) unethical rules of law (Tambong vs. People, 439 SCRA
95)
THE RULE OF LAW AND
THE STATE OF FACTS
Law in its specific and concrete sense is a rule of conduct, just,
obligatory, and formulated by legitimate power for common observance and benefit
(F.B. Moreno, Phil. Law Dictionary, 2nd Ed.)
The term ‘laws’ in Article 13 of the New Civil Code is used in a
generic sense to include the Rules of court which now constitute the adjective laws of
the Philippines (Ng v. Republic, 57306-R, March 30, 1977).
Law is the rule of reason applied to existing conditions by the court in rendering its
Judgment, or issuing final order. For instance, the court’s reason or judgment in
holding the issuer of a bouncing check criminally and civilly liable is Sec. 1 of B.P.
22, which forms part of the law of our land (Art. 8. NCC)
The rule of law, as exemplified in the time-honored principle of dura
lex sed lex – that the law may be harsh, but that is the law, and ignorance of the law
excuses no one from compliance therewith (Art. 3, NCC), must be applied strictly to a
clear and distinct state of facts of a particular case and with “justice for that is our
mission and the scheme of our Republic” (Alonso vs. IAC, 150 SCRA 259; Art. 10,
NCC)
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In the absence of the applicable rule of law to the state of facts as the
action has prescribed, there is no more reason for the accused/defendant to be held
criminally or civilly liable to the public or private complainant.
Thus after the repeal of the Anti-Squatting Law (P.D. No. 772) on
October 27, 1997 by the Anti-Squatting Law Repeal Act (R.A. No. 8368), no person
can be charged and/or be held criminally liable under the said law (Sec. 4, R.R. No.
8368; Sec. 27, R.A. No. 7279).
R.A. No. 9344 amending Art. 12 (2) of the Revised Penal Code on
March 22, 2006, a child fifteen (15) years of age or under at the time of the
commission od the offense shall be exempt from criminal liability.
After the abolition of the Act Designating Death by Lethal Injection
(R.A. No. 8177) and the Death penalty Law (R.A. No. 7659), as well as the related
laws, decrees and orders, by R.A. No.9346, approved on June 24, 2006 and effective
on July 25, 2006, no death penalty shall be imposed upon the accused who may be
convicted of any heinous crime.
So when the rule of law or “the reason for the law ceases, the law itself
ceases”.
In gist, if a defense is based on law, the Defendant or Defense’
Definite Legal Theory equals the Facts minus the Rule of Law. But, if a defense is
based on facts, the Defense or Defendant’s Definite Legal Theory equals the Rule of
Law minus the Facts. In this instance, the parties’ definite legal theories involve
purely on question of fact, the finding of which must be:

RRC);
(a) clearly and distinctly stated in a judgment (Sec. 1, Rule 36,
(b) clearly and distinctly proved in court (Sec. 1. Rule 128); (c) clearly, distinctly and formally
offered in evidence (Sec. 34,

Rule 132);
(d) clearly and substantially in both parties’ pleadings, known as the
ultimate facts (Sec. 1, Rule 8)
THE ULTIMATE FACTS
Ultimate facts as defined are the facts on which the party relies for his
claim or defense (Sec. 1, Rule 8, RRC). It is also known as the factum probandum, or
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facts to be proved by the factum probans (evidentiary facts) (De Gala v. De Gala, 42
Phil. 733).
Deduced from the following legal phrases: material averment made in
the complaint” (Sec. 10 & 11, Rule 8, RRC): and, “material facts alleged in the
information” (U.S. v. Borlado, 42 Phil. 72), actually the ultimate facts (Sec. 1, Rule
8) are also the material facts.
Verily, material allegations of fact are those that without which the
plaintiff would have no cause of action (La Corporation de Padres Agustinos
Recoletos v. Crisostomo(32 Phil. 429)
Moreover, a fact is essential if it cannot be stricken out without
leaving the statement of a cause of action insufficient (Remitere v. Yulo, 132 Phil.
62). Certainly, the essential facts are the key facts (Sayco v. People, G.R. No.
159703, 3/3/08, Phil. Law Report, pp4-5),
In sum, a statement of a cause of action or accusation in a civil or
criminal complaint is sufficient if all of the essential, key, material or ultimate facts
are present or alleged therein.
Like for example in a complaint for forcible entry, the
essential/key/material or ultimate facts would state – “that the plaintiff had prior
physical possession but he was unlawfully deprived thereof by the defendant through
force, intimidation, threat, strategy or stealth, and within one year from the said
deprivation brought an action in the proper MTC “(Sec. 1, Rule 70, RRC)
A cause of accusation in a criminal action is sufficient if all of
key/essential/material ultimate facts, are present. If it lacks one element, the
complaint or information is dismissible, or down-gradable, for failure to charge the
proper offense (Sec. 3(a), Rule 117; &Sec. 14, Rule 110).
In charges of illegal possession of firearm, it is the duty of the
prosecution to prove that the firearm is illegal, that is, to present a witness from the
firearm and explosive unit (FEU) of the PNP to show that the firearm in possession
has not been licensed to any person, particularly , the accused (Rene Botana v. CA
and People, G.R. No. 120650, Feb. 21, 2003; PP v. Dorimon, 321 SCRA 43 (1999)
The absence of license to possess firearm (the essential/key/material/ultimate fact), or
for failure of the prosecution to prove the negative element of a cause of accusation,
this criminal action is dismissible for lack of cause of accusation, or for insufficiency
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of evidence (Sec. 23, Rule 119) (Note: OCA Cir. No. 1-2011, Jan. 18, 2011, admits a
Certification from FED as sufficient evidence)
THE PROVING EVIDENTIARY FACTS
These facts are the factum probans, the proving facts elicited for the
purpose of proving or evincing the essential, key, material or ultimate facts in a
pleading (Sec. 1, Rule 8), by the party’s counsel having the burden of proof.
The Burden of Proof on ULTIMATE FACTS and
The Burden of Evidence on EVIDENTIARY FACTS
Burden of proof is the duty of a party to present evidence on the facts
in issue necessary to establish his claim or defense by the amount of evidence
required by law (Sec. 1, Rule 131)
In civil cases, the burden of proof may be on either side. It is on the
latter, if in the answer one alleges an affirmative defense, which is not a denial of
essential ingredients in the plaintiff’s cause of action, but is one which, if established,
will be a good defense – i.e., an avoidance of a claim, which prima facie, the
plaintiff already has because of the defendant’s own admission in the pleadings
(Sambar vs. Strauss, 378 SCRA 364 (2002)
In criminal cases, the burden of proof is on the prosecution to prove
beyond reasonable doubt the guilt of the accused (PP vs. Abujan, G.R. No. 140870,
2/11/04)
However, once the accused has admitted that he killed the victim, the
burden is on him to establish the presence of any circumstance which may relieve him
from responsibility or mitigate the offense committed (Boholst-Caballero, 61 SCRA
180)
The burden of evidence is the duty of the defendant/defense to present
evidence to controvert, impeach or disprove the proving facts of the
plaintiff/prosecution. Likewise, the burden of evidence is on the plaintiff/prosecution to
present evidence to rebut the controverting or impeaching facts of the
defendant/defense, and ultimately to rehabilitate its proving facts on the ultimate facts
(affirmative allegations) upon which its claim is based. Further, the burden of evidence
is also on the defendant/defense to present evidence to sur-rebut the
plaintiff/prosecution’s rehabilitating facts, and ultimately to rehabilitate its
controverting/impeaching facts, as well as, its own proving facts on the ultimate facts
(affirmative and negative defenses) upon which its defense is based.
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Practically, the burden of evidence is a duty to present evidence on

the evidentiary facts in issue. It shifts from one party to the other as the order of trial
progresses. While the burden of proof is a duty to present evidence on the ultimate
facts in issue. It remains on one side right from the initial presentation of evidence
until the trial (regular or in its reverse order) terminates.
THE EFFECT OF NO PROVING
EVIDENTIARY FACTS
After the plaintiff/prosecution has rested its case, the defendant/accused may
move for the dismissal of a case on the ground that upon the facts and the law, the plaintiff has
shown no right to relief (Sec. 1, Rule 33), or on the ground of insufficiency of evidence (Sec. 23
Rule 119).
Even after the presentation of defendant’s evidence, a civil/criminal complaint
may be dismissed also for lack of cause of action/accusation; for insufficiency of evidence; or
when its ultimate facts are insufficiently supported by the proving evidentiary facts on records.
THE CONTROVERTING
EVIDENTIARY FACTS
These controverting facts are the adverse party’s evidentiary facts
elicited from, or declared by, the accused/defendant, or one’s witnesses’ judicial affidavit (written direct
testimony) conducted ex
parte by the defendant’s counsel at his law office.
Having the burden of evidence to controvert the prosecution/plaintiff’s
evidentiary facts, a counsel may prepare the judicial affidavits of his witnesses
asseverating all the legal and factual defenses, describing and authenticating therein
his corroborating exhibits.
One controverting evidentiary fact in a case is the
misidentification of a party or person by a witness (PP v. Limpangog, G.R. No.
14153, Feb. 2, 2003)
The accused’s legal theory in this case is: the Party’s Definite Legal
Theory equals the Rule of Law plus the Ultimate Facts minus the
Accused/Defendant’s Identity, (PDLT = RL + UF – A/DI).
THE CHANNELS OF
EVIDENTIARY FACTS
These channels of evidentiary facts (witness personal circumstances)
may be classified into six (6) types.
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The first type comprises the witness’ legal circumstances: the name,
AGE, gender, citizenship, religion, dialect, CIVIL STATUS, OCCUPATION and
residence. The words in bold letters are determinative of witness’ disqualifications to
testify by reasons of mental immaturity, marriage, and privileged communications
(Secs. 21(b), 22 & 24 (a,b,c,d, & e), Rule 130)
The second type consists of the witness’ spatial or temporal
circumstances: his whereabouts, location and relative positions at the place and time
in relation to the alleged incidents, to the things around and to the persons allegedly
present thereat. These are determinative of witness’ opportunity of viewing or
knowing the acts or omissions complained of (Sec. 1, Rule 133).
The third type includes the witness’ sensual circumstances or sensory
perceptions: eyes for sight; ears for hearing; nose for smell; tongue for taste; and skin
for touch. These are determinative of the percipient-witness’ competency to perceive
and to convey his perception of the acts or omissions complained of and other existing
conditions of a case or a state of facts to the court. (Sec. 20, Rule 130; ESP is not
legally and judicially recognized).
The fourth type covers the witness’ technical circumstances, such as:
special knowledge, skill, experience or training on a matter in issue. These facts are
determinative of witness’ expertise in giving technical opinion (Sec. 49, Rule 130).
The fifth type embraces the witness’ incidental circumstances, to wit:
familiarity or acquaintances of the identity, handwriting and mental sanity of a person,
including the witness’ impressions of the emotion, behavior, condition or appearance
of a person. These circumstances are determinative of witness’ ordinary/lay opinion
(Sec. 50, Rule 130).
`
The sixth type embraces the witness’ relational circumstances or
relations with the parties, other witnesses or persons involved in a case, by reason of
Marital, Filial, Contractual, Social and Political affinity.
Affinity means tendency, inclination, partiality, bias, liking, preference, propensity,
proclivity, sympathy, predisposition, penchant, susceptibility, hankering, appetite;
Ant., antipathy, hostility, dislike, disinclination. All these lead to the witness’ interest
or want of interest in the result of a case (Sec. 1, Rule 133) But relationship by itself
does not give rise to any presumption of bias or ulterior motive (PP v. Montemayor,
404 SCRA 228).
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The above-mentioned channels of evidentiary facts may practically be

the court’s bases: a) in applying the TOTALITY CIRCUMSTANCES TEST; b) in
looking into human fallibilities and suggestive influences (Limpangog case); c) in
determining the preponderance or equilibrium of the parties’ evidence in civil cases
(Sec. 1, Rule 133); and d) in finding the innocence, or guilt of the accused by a proof
beyond reasonable doubt (Sec. 2, Rule 133).
Nevertheless, the same personal existing conditions may be used to
impeach a witness of the adverse party. Those may be referred to as the impeaching
evidentiary facts.
THE IMPEACHING EVIDENTIARY FACTS
The impeaching evidentiary facts can be elicited from the adverse
witness (or the party’s witness referred to in pars. d & e of Sec. 10, Rule 132) under
cross-examination by the counsel having the burden of evidence to destroy the
credibility of such witness.
The credibility of an adverse witness may be destroyed in three (3)
ways: a) by contradictory evidence; b) by evidence of bad reputation or
character; and c) by inconsistent testimonial evidence (Sec. 12, Rule 132).
Whether such witness is called by the party, or by the other party, the
witness’ credibility may be elicited by asking first of his whereabouts or his
opportunity of viewing the alleged incident.
For instance, the accused/defendant’s alibi given during the direct
examination that he was at the other place when the crime was allegedly committed,
could be contradicted by his admission during the cross examination that he was
residing or staying not so far away from the crime scene.
As follow-up to a question on whereabouts, the witness may be asked
about his relative position or specific distance from the crime scene. He may be asked
also on the spatial or temporal conditions with respect to the facts in a particular case.
In one case the Supreme Court held for alibi to prevail, the accused
must establish by clear and positive evidence that it was physically impossible for him
to have been at the scene of the crime when it happened, not merely that he was
somewhere else. (PP vs. Canoy, Hermenio, G.R. Nos. 148139- 43, Oct. 23, 2003).
Moreover, because of the adverse witness’ contractual, social, or
personal relations, transactions with the party, with the otherwitnessesorpersons
relative tothe caseontrial (determinative of human fallibilities and suggestive
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influences), the admission made by the adverse witness in such transactions may be
utilized by the cross –examiner to confront said witness against any of
theinconsistentadmissions madebyhimduringthecross-examination.
The admission of a witness on cross-examination may be contradicted
by his own admissions given: 1) the direct examination; 2) the pre-trial
conference; 3) the confrontation at the police station; 4) the conciliation before
the office of barangay pangkat; 5) the mediation before the office of the barangay
chairman or 6) any extra-judicial or previous admissions with respect to the
relevant facts in issue (Sec. 26, Rule 130)
Witness’ admission of his previous conviction, as for example of the
crime of falsification on cross-examination, may be used to prove that the witness’
general reputation for truth, honesty, or integrity is bad (Sec. 11, Rule 132). This
would then suggest that the credibility of the witness is low.
When the witness’ credibility has been successfully destroyed, and/or
the party’s evidentiary facts have been duly controverted, the party who has the
burden of proof or duty to prove the ultimate facts, has also the burden of evidence to
present rebuttal evidence by eliciting from the party’s witness some evidentiary facts
as his rehabilitating facts.
THE REHABILITATING
EVIDENTIARY FACTS
These rehabilitating evidentiary facts may be elicited by the examiner-
proponent during the re-direct examination affecting the witness’ sensory perceptions
at the time of the cross-examination and how did he comprehend the eliciting
questions of the cross-examiner.
Or, the party’s witness may be asked the same conditions of his
perceptions at the time of the direct examination and how did he comprehend the
direct eliciting questions of the examiner-proponent.
Or, the party’s witness may be asked about his relative position or
location when the alleged admissions transpired at the office of the police station,
barangay pangkat, barangay chairman, etc.
These rehabilitating evidentiary facts may be elicited from a party’s
witness during the re-direct examination or re-cross examination by the counsel having the BURDEN OF

EVIDENCE of rebutting against the adverse party’s controverting and/or impeaching facts,
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purposely to rehabilitate his witness’ credibility, or to rehabilitate the credibility of

one’s evidentiary fact itself (PP vs. Patano, G,R, No. 129306, March 14, 2003.
These rehabilitating facts may also be elicited directly from the party’s
rebuttal or sur-rebuttal witness, whose personal circumstances (legal/special
circumstances, whereabouts, sensory perceptions) are more accurate or reliable
than those of the previous witness’ personal existing conditions, purposely to
rehabilitate his proving or controverting evidentiary facts.
In practice, some of the witness’ personal circumstance of the first
type – the legal circumstances – can be utilized as the channels of qualifying facts.
THE QUALIFYING FACTS
The qualifying facts include legal circumstances of the witness –
name, age, civil status, and OCCUPTION, which must be asked first by the court’s
interpreter before the counsel-proponent may orally offer the witness’ judicial
affidavit in evidence.
Without these qualifying facts, the oral offer of witness’ testimony
maybe objected to by the adverse counsel on three (3) general grounds: 1) that the
witness is incompetent; 2) that the oral offer is improper; and 3) that the purpose or
purposes of the offer are irrelevant.
Or, the same oral offer of witness’ testimony maybe objected to on
some specific grounds – a) that the witness has not been qualified to testify; b) that
the offer is misleading; c) it lacks the foundation; or d) that it has no basis, etc.
THE RESUME: CATEGORIES OF A STATE OF
FACTS
As to the rule on pleading, the state of facts of a case is of two general
categories: the ultimate facts (factum probandum) and the evidentiary facts (factum
probans) (Sec. 1, Rule 8).
As to the counsel’s burden/duty and purpose of presentation of
evidence, the state of facts of case is of six distinct categories:
1) Ultimate Facts – These are the acts or omissions alleged in a
pleading. Which must be proved by the party having the burden of proof, or duty or
purpose of establishing his claim or defenses (Sec. 1, Rule 8; Sec. 1, Rule 131)
2) Proving Facts – These are evidentiary facts or statements of fact
omitted in a pleading which must be elicited from the party’s witness by the counsel
having the burden of proof, or duty or purpose of proving the ultimate facts in issue.
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3) Controverting Facts – These are the evidentiary facts which must

be elicited from the party’s witness by the counsel having the duty, burden of
evidence, or purpose of controverting the evidentiary facts given by the testimony or
exhibits of the adverse party (Sec. 1, Rule 8;Sec. 1, Rule 131).
4) Impeaching Facts – These are the evidentiary facts which must be
elicited from the adverse/hostile witness by the counsel having the burden of evidence
or duty, or purpose of destroying the adverse or hostile witness’ credibility (Sec. 11,
12, 13, Rule 132).
5) Rehabilitating Facts – These are the evidentiary facts which must
be elicited from the party’s witness by the counsel having the burden of evidence or
duty or purpose of rebutting the controverting and/or the impeaching facts of the
adverse party (Sec. 1, Rule 8; Sec. 1, Rule 131).
6) Qualifying Facts – These are the evidentiary facts (witness’
personal legal circumstances) usually asked by the court’s interpreter or by counsels
for the purpose of qualifying the party’s witness before the latter can answer to the
counsel’s eliciting questions (Sec. 21, 22, & 25, Rule 130).
Recalling some of the categories of facts may be troublesome, so it
may be wise for a counsel to adopt a list as a guide to the facts he ought to recall
during the trial. This is the party’s written trial guide.
THE PARTY’S WRITTEN
TRIAL GUIDE
A written Trial Guide may be adopted by the counsel after the court
has issued a pre-trial order incorporating the action taken during the preliminary
conference before the clerk of court and at the pre-trial proper, the evidence marked,
the stipulation of facts or of testimony, the amendments of pleadings, the proposals
for settlement, and the definition of issues for trial, which shall control the subsequent
course Rule118; A.M. No. 03-1-9-SC).
These written trial guide, trial plan, trial brief, evaluation sheet or
check list for the new lawyers is a simple, clean and distinct listing of their:
1) Ultimate facts admitted in the pleadings and stipulated at the
preliminary and/or pre-trial conference;
2) Evidentiary facts admitted at the preliminary or pre
trial conference (stipulations of facts), and/or
stipulations of the testimony (nature or tenor), not necessarily the truth thereof;
 COURT TESTIMONY

3) Exhibits marked, their nature and their purposes; 4) Exhibits

admitted as to the existence, and/of authenticity;
5) Factual and legal issues;
6) Witnesses, the names, the nature of their testimonies on facts in
issue, their legal or qualifying circumstances, whereabouts, sensory perceptions,
relations with the parties other witnesses persons, documents, objects place time,
including other circumstances of the case;

7) Probable qualifying, proving, controverting, impeaching, or rehabilitating facts;

8) Researches on laws, rules and jurisprudence, including the principle in arts, sciences and
trades, determinative or decisive of the factual and/or legal issues.
Equipped with his written trial guide, which is consistent with the court’s pre-trial order the trial
lawyer may be guided in determining: a) whether he should concentrate only on the proving,
controverting, impeaching, or rehabilitating evidentiary facts; b) what or when should he
propound a particular question; c) when to end his eliciting questions; d) whether he should still
conduct the direct or re-direct examination, do the cross or re-cross examination; and e) whether
the desired facts are alread sulied b the adverse counsel.

In obtaining a clear focus of the desired facts of the case or defense

under (not outside) a party’s definite legal theory (PDLT=Rule of Law plus or minus
Facts), the examining counsel may construct an imaginary structure of such legal
theory and may adopt the party’s visual trial plan or guide.
THE PARTY’S VISUAL TRIAL GUIDE
A Visual Trial Guide may take any structural form. It may appear like a
chain of facts firmly connecting to each other from end to end. Or it may look like a
pyramid of cubes supporting the one on its apex. Appropriately, the visual structure
of a party’s definite legal theory may resemble like the skeleton of a typical Filipino
house with its strong posts: standing on solid or valid ground(s); sustaining the girders,
floor joists, studs, braces, ceiling joists; and ultimately supporting the beams and
trusses at the top.
The visual structure used by the counsel in formulating the party’s
provisional theory of the case may be the same visual structure to be used:
1st in adopting the party’s definite legal theory in his pleading; 2nd in recommending
the client’s appropriate plea upon arraignment; 3rd in entering into a compromise
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agreement on the civil aspect, in making admission or stipulation of facts, in marking

of exhibits, and in proposing factual or legal issues during the preliminary or pre-trial
conference; 4th in offering of oral/written testimony of a witness; 5th in conducting the
examination of a witness; 6th in formally offering of exhibits; 7th in presenting oral
argument, position paper or memorandum; 8th in pursuing or defending a case on
appeal; and rarely, 9th in enforcing or staying a writ of execution of judgment in a
case.
THE QUALITY OF EXAMINER’S QUESTION
These questions doubtlessly depend upon the examiner’s manner or
efficiency of following up his visual or written trial plan. There would be no problem
during trial if the counsel follows the trial guide. More importantly, he must know the
weakness of his witness, what to watch out for, as he conducts the examination and
what important points to bring out. Whatever question asked, and words used during
the briefing in the office, must be the same question and word to be asked in the
courtroom during trial.
1. Don’t change your language. Don’t change the wordings of your
question from the office interview to the court. 2. Don’t ever ask of your own witness
about any exhibit that you have not discussed with him in your office.
3. If your witness is going to identify your exhibit, then you explain to
your witness all these big words that you have to go through in court to identify an
exhibit.
Q: Do you recognize this document?”
A: Yes Sir.
Q: Why do you recognize this document?
A: Because it is the letter I received from the defendant.
Q: Do you recognize this signature?
A: Yes, Sir.
Q: Whose signature is this?
A: The signature of the defendant.
Q: Why do you recognize this signature?
A: I have seen it very often.
Fortunately, with the use of judicial affidavit, the proponent-
examining counsel can freely build up the party’s theory of the case, that is, without
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interruption from the annoying objections of the adverse counsel, or from the court’s
damaging questions.
On cross-examination, the examiner must definitely know that the
answer of the witness be categorically YES or NO; and that a witness’ admission
would be the desired missing or connecting link to complete the structure of his
client’s definite legal theory.
The examiner must not permit a witness to explain a matter of fact,
unless he is sure that the probable explanation would be the one already in his mind.
He must not ask questions calling for alternative answer, neither propound questions
for the sake of asking.
THE LEGAL OBJECTIONS
1. As to offer of oral testimony, the Rules of Court states: Objection. – Objection to
evidence offered orally must be made immediately after the offer is made. Objection to
a question propounded in the course of the oral examination of a witness shall be made
as soon as the ground therefor shall become reasonably apparent (Sec. 36, Rule 132,
RRC). Striking out answer. – Should a witness answer the question before the adverse
party has the opportunity to voice fully its objection to the same, and such objection is
found to be meritorious, the court shall sustain the objection and order the answer to be
stricken off the record. On proper motion, the court may also order the striking out of
answers which are incompetent, irrelevant, or otherwise improper Sec. 39, Rule
132).
2. As to offer of testimony in judicial affidavit, The Judicial Affidavit Rule provides that:
The party presenting the judicial affidavit of his witness in place of
direct testimony shall state the purpose of such testimony at the start of the
presentation of the witness. The adverse party may move to disqualify the witness
or to strike out his affidavit or any answer found in it on the ground of
inadmissibility. The court shall promptly rule on the motion and, if granted, shall
cause the marking of any excluded answer by placing it in brackets under the initials
of an authorized court personnel, without prejudice to a tender of excluded evidence
under Section 40 of Rule 132 of the Rules of Court. (Sec. 6, A.M. No. 12-8-8- SC,
Sept. 4, 2012).
3. As to offer of exhibit in a judicial affidavit that is immediately admitted by the court.
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Facts: After presenting the witness’ judicial affidavit, the party orally
offers his exhibit. Over the adverse party’s objection to its admission, the court
immediately rules and admits respecting that exhibit.
Question: May the adverse party object to the inadmissibility of such exhibit on the
ground of impropriety? At what instance, if any? Answer: Yes, as when the court
inadvertently admits an exhibit that is not pre-identified, neither pre-marked, nor pre authenticated by the
witness in his judicial affidavit itself (Preclusion Rules); or when the court
erroneously admits an exhibit prematurely offered by a party, although he has still
witnesses to be presented.
THE KINDS OF RELEVANT EVIDENCE
A relevant evidence is either: MATERIAL when it directly proves a
fact in issue; or COLLATERAL when it merely tends to establish the probability
or improbability of a fact in issue (Sec. 4, Rule 128); or CIRCUMSTANTIAL
when it indirectly and sufficiently proves the guilt of the accused beyond
reasonable doubt (Sec. 4, Rule 133); or SUBSTANTIAL, that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion
in cases filed before the administrative/quasi-judicial bodies (Sec. 5, Rule 133)
THE CREDIBILITY OF ADMISSIBLE EVIDENCE
The evidence may be admissible but it may not be always credible
because admissibility of evidence defends upon its competency, relevancy, and
propriety, while credibility refers to the trustworthiness or truthfulness of a
witness, or to the weight and sufficiency of the evidence given to it by the court or
tribunal adopting the totality circumstances test (Rule 133; PP v. Arapok, 347 SCRA
479).

THE CONFORMITY OF THE PROVEN ULTIMATE FACTS WITH THE

LEGESLATIVE FACTS
First, whether all the duly proven ultimate facts are sufficient or insufficient to conform with all
the legislative facts – the acts or omissions determined by the legislative body, or the facts
defined by law, statute or ordinance, constituting a particular cause of action or accusation.
Second, whether the statute/ordinance determining or establishing the legislative facts has tied
or got to be with, his client.
Third, whether such legislative facts (defining a specific rule of law for a particular cause of
action of accusation) have been modified, repealed, or declared void at the time of the
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commencement of an action.

THE LAWYER’S BASIC FUNCTION AND TASKS

The basic function of a trial lawyer is to win the case in ways
sanctioned by law. By winning a case means obtaining a favorable judgment so that
if his clients have suffered any harm or injury, they may recover. And that if his
clients have caused harm or injury, they may not pay more than the law requires.
Concomitantly, it has been recognized that the prosecuting officer is
the representative not of ordinary party to a controversy but of a sovereignty whose
obligation to govern impartiality is as compelling as its obligation to govern at all; and
whose interest, therefore in a criminal prosecution is not that one will win a case but
that justice shall be done. (Rule 6.01, Code of Professional Conduct)
To translate this function into a concrete task, the job of a trial lawyer
can be broken up into:
First, he must be able to offer the admissible evidence, and must do so in right order
and at the right time for maximum persuasive effect. He must prove the theory of the
case or defense, and must prove that it is inherently right for the judge to decide the
case in his client’s favor. He must see that this is done by effective direct examination
and proper introduction of exhibits.
Second, he must the best to exclude the admissible evidence of the opponent, by
objections and motions to strike out
Third, he must make way to expose the weakness of the opponent’s case by having
an effective cross-examination, by impeachment and rebuttal. He must also strengthen
or rehabilitate any part of the party’s theory of the case/defense that the opponent has
succeeded in weakening through re-direct examination and corroborating evidence.