CROSS-EXAMINATION

Concept and Nature

Cross-examination is the examination of a witness by the party opposed to the party who called
such witness, the latter party having examined, or having been entitled to examine, such
witness in chief (FRANCISCO, 2017 p. 543).

The right to cross-examine is an absolute right, not a mere privilege. Article III, Sec. 14 (2) of the
Constitution provides that “the accused shall enjoy the right to meet the witnesses face to face”,
and Rule 115, Sec. 1 (f) of the Rules of Court declares that in all criminal prosecutions the
accused shall be entitled to be confronted at the trial by, and to cross-examine the witnesses
against him.

While the right to cross-examine is a vital element of procedural due process, the right does not
necessarily require an actual cross examination but merely an opportunity to exercise this right
if desired by the party entitled to it (supra at 544). Hence, the consequences are as follows:
a) If the opponent was never given the opportunity to cross examine a witness, the
direct testimony may, on motion of the opponent,  be stricken off as hearsay.

b) All assertions of facts not based on the personal knowledge of the witness may
also be stricken off as hearsay since the source cannot be subjected to the
opportunity of cross-examination.

Limitations to the Right to Cross-Examination 

a) The right may be waived expressly.

b) It may be lost through the fault or negligence of the opponent.

c) After a witness has been cross-examined and discharged, further cross-

examination is no longer a right but must  be addressed to the sound discretion of
the court.

d) The Court may limit the cross-examination if its needlessly protracted, or is being
conducted in a manner which is unfair to the witness or is inconsistent with the
decorum of the court,  as when it degenerates into a shouting match with  the
witness.
      
Effect of the Loss or non-completion of the cross examination 
a) If the loss, in whole or in part, was due to the fault of the adverse party, the
testimony of the witness is to be taken into consideration.

b) If the cross-examination cannot be done or completed due to causes attributable

to the party offering the witness, the testimony is rendered incompetent.

c) If the loss or –non-completion was due to the death or unavailability of the witness
then that part of the testimony which was subjected to cross-examination remains
admissible.

Character of Cross Examination: It is both an Art and a Science

It is an Art because it requires consummate skill which is acquired and developed. There is no
standard method as it is highly personalized, subjective and be adaptive to who the witness is
and to the subject of the cross examination. The length, style of questioning or approach to a
witness requires intuition and understanding of human nature; of the habits, weaknesses, bias
and prejudices of people; their reactions to situations, their perception of matters, and such
other factors that vary  according to circumstances of time, place, people and occasions. 
It requires the ability to think quickly, read quickly and to know when to quit. The lawyer’s
antennae must ever be tuned in to the witness: his character, personality; mannerism, and all
traits which will give a favorable clue; to the adverse counsel and to the Court.     
Should a party cross examine or not depends on a full understanding of what to expect. The
following must be considered before a party attempts to cross-examine:
a) Whether the witness has hurt the case or the impact of his testimony on the case
b) Whether the witness is important, as for example an eye witness, or a party witness
c) Whether the testimony is credible
d) The risks that the party undertakes
It is a science. It requires a thorough preparation and mastery of certain rules/jurisprudence on
procedure in the presentation of evidence.

Importance and Purpose of Cross-Examination 

Cross examination is both a weapon to destroy or weaken the testimony of the opponent’s
witness and a tool to build up or strengthen a party’s case. The conduct of cross-examination
must always be directed towards achieving a specific purpose or purposes.
Constructive Cross-Examination. The purposes are: (a) to amplify or expand the story of the
witness so as to place the facts in a different light which is favorable to the party. Note that the
witness of the opponent seldom  volunteer facts favorable to the cross-examiner, hence the
manner of questioning should be “insinuating”, and (b) To obtain favorable or establish
additional facts favorable to the cross-examining party. 
Destructive Cross-Examination. The purposes are: (a) to discredit the testimony of the
witness by showing its absurdity, or that it is unbelievable or contrary to the evidence; (b) To
discredit the witness by showing his bias, interest, lapse of or selective memory, incorrect or
incomplete observation of event, and similar situations.
 
Scope of Cross-Examination
Under section 6, Rule 132 of the Rules of Court, the witness may be examined: (a) as to any
matter stated in the direct examination (b) or any matter connected therewith (c) as to the
accuracy and truthfulness and freedom of the witness from interest or bias, or the reverse and
(d) upon all important facts bearing upon the issue. 
The English Rule is followed in the Philippines: the cross examination is not confined to matters
subject of the direct examination but extends to other matters, even if not inquired in the direct
examination but are material to the issues. This is distinguished from the American Rule which
holds that the scope of the cross-examination is confined to the facts and circumstances
brought out, or connected with, matters stated in the direct examination
 
Questioning by the Court
 
The Court may ask questions (1) to clarify itself on certain points; (2) to call the attention of
counsel to points at issue that are overlooked and; (3) to direct counsel to questions on matters
to elicit facts and clarify ambiguous answers. However, the questioning by the court should not
be confrontational, probing and insinuating. It should not be partisan and not over extensive.
The court is not to assume the role of an advocate or prosecutor.
 
THE TEN COMMANDMENTS OF CROSS-EXAMINATION

The First Commandment: Thou Shalt Prepare

Preparation is essential. A lawyer must prepare because the jury will assess his or her depth of
knowledge and commitment to the case by the demonstrated ability to handle the details of
cross-examination.

The Second Commandment: Thou Shalt Know Thy Objective

“Make three points and sit down”. Before initiating a cross-examination of any witness, the
lawyer should clearly bear in mind those points he or she wishes to make with that witness. And
then, he or she should write them down. These points also should be discussed with those who
are assisting at trial. Effective cross-examination cannot be accomplished without a clear
understanding of which points are critical to the case, and which ones can be extracted most
appropriately from each witness.

The Third Commandment: Thou Shalt Take Baby Steps

Patience is a virtue in cross-examination. Delivery of key points is not just a destination; it is a
journey on which the jurors should accompany the lawyer. They must understand step-by-step
where the cross-examination is headed. It is called pacing; it is called communication.

The Fourth Commandment: Thou Shalt Lead the Witness (Usually)

Leading questions are most effective because they essentially allow the cross-examiner to
testify and the witness to ratify. The technique advances one of the important dynamics of the
courtroom -- control. Asking leading questions allows the cross-examiner to be forceful,
fearless, knowledgeable and informative. 

Leading questions are questions that contain the answer within the question. It is a simple
statement of fact, and you are asking the witness to either agree or disagree with that statement
of fact.

Examples of Proper Leading Questions on Cross-Examinations:

1. The car was red, wasn’t it?

2. You didn’t like her, did you?
3. You picked Mr. Johnson out of the lineup, correct?
4. Isn’t it true that you never went to the house that night?
5. You wear glasses, don’t you Mr. Bond?

Cross-examination should conclude with the following statement: “Thank you, Mr./Ms.
__________ (name of witness). That will be all, your honor.”

The Fifth Commandment: Thou Shalt Know Thy Style and Adapt It to the Occasion
Be true to yourself and develop an approach or style suited to your personality and character.
Be able to vary your style and know when it is effective to use either a booming or soft voice; to
move around or to stay put; to be conversational or confrontational or tough and confident.

The Sixth Commandment: Thou Shalt Know When to Quit

When to quit: (1) when the witness has been discredited or has made a monumental
concession and (2) when the witness is killing the case or counsel. There is no need for overkill.

The Seventh Commandment: Thou Shalt Know What to Take to the Podium
The paramount rule on impeachment is this: use impeachment sparingly and only for telling
points. 

The Eighth Commandment: Thou Shalt Know Thy Audience

Effective trial lawyers remember that the important audience is seated in the court. The judge
must understand the case. 

The Ninth Commandment: Thou Shalt Know the Rules of Evidence

The starting point is to know the rules of evidence so that they can be argued usefully.

The Tenth Commandment: Thou Shalt Know Thy Judge

Knowing the peccadilloes of a particular judge will provide a measure of comfort, allowing
counsel to focus on important substantive issues. Before trying a case to an unfamiliar judge,
find out about that judge. 
     
ADDITIONAL PRACTICAL TIPS 
1. BE BRIEF. Confine to the strongest points.

2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax. 

3. NEVER ASK A QUESTION to which you do not already  know the answer. 

4. LISTEN TO THE WITNESS. Tune in if he was contradicted by another witness or prior

testimony; is the testimony contrary to human experience or completely inconsistent with
nature.  

5. DO NOT QUARREL WITH THE WITNESS

6. DO NOT PERMIT THE WITNESS TO EXPLAIN

7. DO NOT REPEAT HIS TESTIMONY ON DIRECT

8. AVOID QUESTIONS TOO MANY

9. SAVE THE EXPLANATION FOR THE MEMORANDUM. Questions should not be

explanations of your position.
 
 
References:
1. Basic Evidence (Francisco, 2017)
2. https://www.calymca.org/images/TE_II_-_Bench_Trial_Handbook.pdf
3. https://batasnatin.com/law-library/remedial-law/evidence/1091-rule-132-rules-of-court-
presentation-of-evidence.html
4. http://attylaserna.blogspot.com/2011/08/ten-commandments-of-cross-examination.html