(d) Methods of impeaching of adverse party’s witness:

Impeachment of a witness is a technique employed usually as part of the cross-examination to

discredit a witness by attacking his credibility. Destroying credibility is vital because it is linked
with a witness’ ability and willingness tot tell the truth. (Riano 2013)

Fundamental rules of impeachment:

(a) The impeachment of a witness is to be done by the party against whom the witness is called.
(Sec. 11, Rule 132, Rules of Court)
(b) Generally, the party producing the witness is barred from impeaching his own witness (Sec. 12,
ibid).
(c) The exception to the general rule is that, if the witness is unwilling or hostile, the party calling
him may be allowed by the court to impeach the witness. Whether the witness is hostile or not is
addressed to judicial evaluation and the declaration shall be made only if the court is satisfied
that the witness possesses an interest adverse to the party calling him, or there is adequate
showing that the reluctance of the witness is unjustified, or that he misled the party into calling
him as a witness. (Sec. 12, ibid)
(d) A party may also be allowed to impeach his own witness when said witness is an adverse party
or is an officer, director, or managing agent of a corporation, partnership, or association which is
an adverse party. (Sec. 12, ibid)
(e) A witness is presumed to be truthful and of good character. Evidence of the good character of the
witness is allowed only to rebut the evidence offered to impeach the witness’s character. (Sec.
14, ibid. Riano 2013)

Modes of impeachment of a witness: (Sec. 11, Rule 132, Rules of Court)

(a) By contradictory evidence;
(b) By evidence that his general reputation for truth, honesty or integrity is bad; or
(c) By evidence that he has made at other times statements inconsistent with his present testimony.
*Note: A witness cannot be impeached by evidence of particular wrongful acts except evidence
of his final conviction of judgment. (ibid)
**Note: An unwilling or hostile witness so declared by court or the witness who is an adverse
party cannot be impeached by evidence of his bad character. (Sec. 12, Rule 132, Rules of Court)

A. By contradictory evidence:
The party impeaches the witness by presenting evidence which is an exact opposite of what the
witness said. In effect, counsel is destroying his credibility; that the witness’ testimony cannot be
accepted because there is evidence to the contrary. If the evidence to the contrary is given more
weight by the court, then the witness has been impeached.

This mode of impeachment may also be used to contradict conclusions made by expert witnesses
during their testimonies.

B. Impeachment by prior inconsistent statements:

 Prior inconsistent statements are statements made by a witness on an earlier occasion which
contradict the statements he makes during the trial. In the words of Sec. 13 of Rule 132, they are
“that he has made at other times statements inconsistent with his present testimony.” These
statements are admissible to impeach the credibility of the witness making them.

Laying the foundation, commonly referred to as “laying the predicate” is a preliminary

requirement before the impeachment process prospers.

Elements “laying the predicate”:

(a) The alleged statements must be related to the witness including the circumstances of the times
and places and the persons present. If the statements are in writing, they must be shown to him;
and
(b) He must be asked whether he made such statements and also to explain them if he admits making
those statement.

*Note: The mere presentation of the prior declarations of the witness without the same having
been read to him while testifying in court is insufficient for the desired impeachment of his
testimony, if he was not given the ample opportunity to explain the supposed discrepancy.
(People vs De Guzman, 288 SCRA 346,354)

**Note: The underlying purpose for laying the predicate is to allow the witness to admit or deny
the prior statement and afford him an opportunity to explain the same. Non-compliance with the
foundational requirements for this mode of impeachment will be a ground for an objection based
on “improper impeachment”.

***Note: The process of laying the predicate if the statement is in writing is fundamentally the
same as when the prior statement is oral. However, it must be shown to the witness before any
question is put to him concerning it. (Sect 13, Rule 132, Rules of Court)

C. By evidence that his general reputation for truth, honesty or integrity is bad:

When a witness testifies, he puts his credibility at issue because the weight of his testimony
depends upon his credibility. One way to impair his credibility is by showing a not so pleasing
reputation. Hence, the prevailing rule allows his impeachment by evidence that he has a bad
general reputation. Not every aspect of a person’s reputation may be subject to impeachment.
Evidence of bad reputation for the purpose of impeachment should refer only to the following
aspects: (a) for truth, (b) for honesty, (c) for integrity. (Sec. 11, Rule 132, Rules of Court)

A witness is presumed to be truthful and of good character, the party presenting him does not
have to prove he is good because he is presumed to be one. The party calling the witness cannot
initiate proof of his good character. Any question to that effect can be validly objected to as
“improper character evidence”. He must first be discredited before his reputation or character
can be bolstered. This basic procedural rule is supported by the provisions of Sec. 14 of Rule
132:
 “SEC. 14. Evidence of good character of witness.- Evidence of the good character of
a witness is not admissible until such character has been impeached.”

*Note: The rule that bars evidence of good character of the witness, who has not yet been
impeached, has reference only to a mere witness. It does not refer to an accused in a criminal
case. In a criminal case, the accused may prove his good moral character relevant to the offense
charged even before his character is attacked. (Sec. 51 [a][1], Rule 130, Rules of Court).
However, the prosecution cannot initiate proof of the bad character of the accused. It can only do
so by way of rebuttal (Sec. 51 [a][2], ibid). This means that the prosecution can prove the bad
character of the accused only if the latter had first presented evidence of his good character.

No impeachment by evidence of particular wrongful acts:

A witness cannot be impeached by evidence of particular wrongful acts (Sec. 11, Rule
132, Rules of Court). Just as a witness cannot testify on specific acts of misconduct committed
by the witness being impeached, the latter cannot also be examined on particular wrongful acts
done by him. To do so would be a contravention of the tenor of Sec. 11 of Rule 132.

He can nevertheless be impeached as to his bad reputation for truth, honesty, or integrity.
There is, however, a particular wrongful act that is admissible in evidence under the same
section- his prior conviction of an offense. This prior conviction of the witness is shown through
either of two ways: (a) by his examination, i.e., by cross examining him, or (b) by presenting the
record of his prior conviction.

Examining another witness to elicit from his lips the prior conviction of another witness
is not the correct procedure, unless the witness is one who is competent to present in court the
record of conviction (e.g. an official custodian of records). The rule is clear on this. It should be
by “the examination of the witness.” This witness is obviously the one whose prior conviction is
the subject of inquiry.

Impeachment of the adverse part as witness:

That the witness is the adverse party does not necessarily mean that the calling party will
not be bound by the former’s testimony. The fact remains that it was at his instance that his
adversary was put on the witness stand. He is not bound only in the sense that he may contradict
him by introducing other evidence to prove a state of facts contrary to what the witness testifies.
Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if
he had been called by the adverse party, except by evidence of his bad character. Under a rule
permitting the impeachment of an adverse witness, although the calling party does not vouch for
the witness’ veracity, he is nonetheless bound by his testimony if it is not contradicted or remains
unrebutted. (Gaw vs. Chua, 551 SCRA 505)

Exclusion and separation of witnesses:

 The judge may exclude a witness who, at the time of exclusion, is not under examination
so that he may not hear the testimony of other witnesses (Sec. 15, Rule 132, Rules of Court). The
judge may also cause the witnesses to be kept separate and be prevented from conversing with
one another until all shall have been examined (ibid).

When the witness may refer to a memorandum:

During his testimony, in order to refresh his memory, a witness may refer to a
memorandum or anything written or recorded by himself, or written or recorded by someone
acting under his direction. Such memorandum should be written at the time the fact occurred or
immediately thereafter, or at any time when the event or fact was fresh in his memory. It is
necessary too that the witness affirm that the fact was correctly written or recorded. Also, the
memorandum must be produced and may be inspected by the adverse party (Sec. 16, Rule 132,
Rules of Court).

The witness may testify from the memorandum, writing or record, although he has no
more recollection of the facts written therein, as long as he swears that the memorandum,
writing, or record correctly stated the fact or transaction when the recording was made. This type
of evidence must, however, be received with caution. (ibid)

Judicial Affidavit Rule (A.M. 12-8-8-SC)

Rationale for the J.A.R.:

The most basic reason for the adoption of the Rule is to decongest the courts of cases and
to reduce delays in the disposition of cases. Due to these delays, the Supreme Court declares in
the “whereas clause” of the Rule, that “few foreign businessmen make long-term investments in
the Philippines because its courts are unable to provide ample and speedy protection to their
investments, keeping its people poor.”

The “whereas clause” of the Judicial Affidavit Rules likewise affirms that “case
congestion and delays plague most courts in cities, given the huge volume of cases filed each
year, and the slow cumbersome adversarial system that the judiciary has in place.” The Rule also
recognizes that “about 40% of criminal cases are dismissed annually owing to the fact that
complainants simply give up coming to court after repeated postponements.”

Effectivity of the J.A.R.

By the terms of the Rule, the Judicial Affidavit Rule took effect on January 1, 2013
following its publication in two newspapers of general circulation not later than September 15,
2012 (Sec. 12, J.A.R. ).

Scope of the Judicial Affidavit Rule:

1. The Rule shall apply to all (a) actions, (b) proceedings, or (c) incidents requiring the reception of
evidence (Sec. 1, J.A.R.).
2. The Rule, in effect, applies to all courts, other than the Supreme Court. It also applies to certain
non-judicial bodies. The Rule specifies the following courts and bodies:

(a) Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, Municipal
Circuit Trial Courts, and the Shari’a Circuit Courts, but shall not apply to small claims cases;
(b) Regional Trial Courts and Shari’a District Courts;
(c) Sandiganbayan, Court of Tax Appeals, Court of Appeals and Shari’a Appellate Courts;
(d) Investigating officers and bodies authorized by the Supreme Court to receive evidence, including
the Integrated Bar of the Philippines; and
(e) Special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of
the Supreme Court (Sec. 1, J.A.R.).

Significance of the use of a judicial affidavit; exhibits

1. The judicial affidavit shall take the place of direct testimonies of witnesses (Sec. 2 [a][1] J.A.R.).
The rule, therefore, modifies the existing practice in the conduct of a trial and reception of
evidence by doing away with the usual oral examination of a witness in a direct examination.
2. To be attached to the judicial affidavit are the documentary or object evidence of the parties
which shall be marked as Exhibits A,B,C and so on in the case of the complainant or plaintiff. In
the case of the respondent or the defendant, the evidence shall be marked as Exhibits 1,2,3, and
so on. (Sec. 2 [a][2], ibid)
3. The original document or object evidence need not be attached to the judicial affidavit. The party
or witness may keep the same in his possession after the exhinit has been identified, marked as
an exhibit, and authenticated. He must, however, warrant in his judicial affidavit that the copy or
reproduction attached is a faithful copy or reproduction of the original (Sec. 2[b], ibid).

Aside from the above requirement, the party or witness is required to bring the original document
or object evidence for comparison with the attached copy, reproduction, or pictures, during the
preliminary conference. In case of failure to bring the originals for comparison, the attached
copy, reproduction, or pictures shall not be admitted. (Ibid)

Applicability of the Rule to criminal cases:

1. The Rule applies to criminal cases where the maximum of the imposable penalty does not exceed
six years (Sec. 9[1], Judicial Affidavit Rule). In other cases, the use of the judicial affidavits will
now depend on the accused. The Rule will apply, irrespective of the penalty involved, where the
accused agrees to the use of judicial affidavits (Sec. 9[2], ibid)
2. With respect to the civil aspect of the criminal action, the Rule shall apply, irrespective of the
penalty involved (Sec. 9[3], ibid).
Contents of the judicial affidavit:
A judicial affidavit shall be prepared in the language known to the witness and, if not in
English or Filipino, accompanied by a translation in English or Filipino, and shall contain the
following:

(a) The name, age, residence or business address, and occupation of the witness;
 (b) The name and address of the lawyer who conducts or supervises the examination of the
witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully conscious that he
does so under oath, and that he may face criminal liability for false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:

(1) Show the circumstances under which the witness acquired the facts upon which he testifies;

(2) Elicit from him those facts which are relevant to the issues that the case presents; and

(3) Identify the attached documentary and object evidence and establish their authenticity in
accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an officer who is
authorized by law to administer the same. (Sec. 3, Judicial Affidavit Rule).

Effect of non-compliance with the content requirements of Sec. 3 of the Rule:

A judicial affidavit which does not conform to the content requirements of Sec. 3 of the
judicial affidavit rule shall not be admitted by the court in evidence (Sec. 10[c], ibid).

The relevant provision, however, does not absolutely bar the submission of a complaint
replacement judicial affidavit as long as the replacement shall be submitted before the hearing
or trial, and provided further that the following requisites are met: (The same remedy applies for
late submissions)
(a) The submission shall be allowed only once;
(b) The delay is for a valid reason;
(c) The delay would not unduly prejudice the opposing party; and
(d) The public or private counsel responsible for the preparation and submission of the affidavit pays
a fine of not less than 1,000.00 php no more than 5,000.00 php at the discretion of the court (Sec.
10[a], ibid)

Filing of service of the judicial affidavit and exhibits; modes of service

1. The parties shall file with the court and serve on the adverse party, personally or by licensed
courier service, not later than five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents. (Sec. 2[a], Judicial Affidavit Rule).
2. In criminal cases, the prosecution shall submit the judicial affidavits of its witnesses not later
than five days before the pre-trial, serving copies if the same upon the accused. The complainant
 or public prosecutor shall attach to the affidavits such documentary or object evidence as he may
have, marking them as Exhibits A, B, C, and so on (Sec. 9[b], ibid). No further judicial affidavit,
documentary, or object evidence shall be admitted at the trial. This means that even before the
trial, the prosecution has to lay down on the table, all its evidence- testimonial, documentary, and
object.
3. Since the accused is already aware of the evidence of the prosecution, he has the options to
submit or not to submit his judicial affidavits. If the accused desires to be heard on his defense
after receipt of the judicial affidavits of the prosecution, he shall have the option to submit his
judicial affidavit as well as those of his witnesses to the court within ten days from receipt of
such affidavits and serve a copy of each on the public and private prosecutor, including his
documentary and object evidence previously marked as Exhibits 1, 2, 3, and so on. These
affidavits shall serve as direct testimonies of the accused and his witnesses when they appear
before the court to testify (Sec. 9[c], ibid).

Effects of failure to submit the judicial affidavits and exhibits on time:

Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who fails to
submit the required judicial affidavits and exhibits on time shall be deemed to have waived their
submission. The court may, however, allow only once the late submission of the same provided,
the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting
party pays a fine of not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the
court.

(b) The court shall not consider the affidavit of any witness who fails to appear at the scheduled
hearing of the case as required. Counsel who fails to appear without valid cause despite notice
shall be deemed to have waived his client's right to confront by cross-examination the witnesses
there present.

(c) The court shall not admit as evidence judicial affidavits that do not conform to the content
requirements of Section 3 and the attestation requirement of Section 4 above. The court may,
however, allow only once the subsequent submission of the compliant replacement affidavits
before the hearing or trial provided the delay is for a valid reason and would not unduly
prejudice the opposing party and provided further, that public or private counsel responsible for
their preparation and submission pays a fine of not less than P 1,000.00 nor more than P
5,000.00, at the discretion of the court. (Sec.10, Judicial Affidavit Rule)

The waiver would mean that a party who failed to submit the judicial affidavit of a particular
witness would have no direct testimony for that witness, and the documentary, or object evidence
integrated with such affidavit could not be identified, marked as an exhibit, and authenticated. In
effect, the exhibit could not be offered in evidence. If the waiver extends to the required
affidavits of all the witnesses of a party because all the judicial affidavits were not filed and
served, then said party is deemed to have not presented his evidence-in-chief for his case.

Offer of testimony in the judicial affidavit:

 Instead of offering the oral testimony of the witness, 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 (Sec. 6, Judicial Affidavit Rule).

Objections to the testimony in the judicial affidavit; ruling of the court

1. The presentation of the judicial affidavit and the statement of the purpose of the testimony
contained therein will give the adverse party the opportunity to object to the testimony.

The adverse party may move to disqualify the witness or to strike out his affidavit or any of the
answers found in it on 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, Judicial Affidavit Rule).

*Note: The term “promptly” should be taken in its literal context and akin to the word
“immediately”, as used in Sec. 38 of Rule 132 of the Rules of Court.

Appearance of the witness at the scheduled hearing:

1. The submission of the judicial affidavit of the witness and the attached exhibits does not exempt
the witness from appearing at the scheduled hearing. The rule still requires his appearance
(Sec.10[b], Judicial Affidavit Rule).
2. The appearance of the witness is necessary because the adverse party has the right to cross-
examine him. The cross-examination shall be on his judicial affidavit and on the attached
exhibits. After the cross-examination, the party presenting the witness may also examine him as
on re-direct. (Sec. 7, ibid)
3. A postponement of the cross-examination would be contrary to the spirit of the rule because the
judicial affidavits have been filed and served even before the scheduled hearing.
4. The questions of the court shall not be confined to mere clarificatory questions. The Rule
mandates the court to take active part in examining the witness to (a) determine the (i) credibility
of the witness and (ii) truth of his testimony; and (b) elicit the answers that it needs in resolving
the case (Sec. 7, ibid)

Effect of failure of a witness to appear at the scheduled hearing; failure of counsel to

appear

1. The court shall not consider the affidavit of any witness who fails to appear at the scheduled
hearing of the case as required. Counsel who fails to appear without valid cause despite notice
shall be deemed to have waived his client's right to confront by cross-examination the witnesses
there present. (Sec. 10[b], Judicial Affidavit Rule).
2. If the affidavit is not considered, it is as if no judicial affidavit has been executed by the absent
witness. Such witness, hence, shall be deemed as not having given a direct testimony in the trial.

When there is a need for the issuance of a subpoena:

1. A requesting party may avail himself of the issuance of a subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court if a witness unjustifiably declines to (a) execute a
judicial affidavit, or (b) refuses without just cause to make the relevant books, documents, or
other things under his control available for copying, authentication, and eventual production in
court (Sec. 5, ibid).

*Note: The witness referred to is a government employee or official, or a requested witness, who
is neither the witness of the adverse party nor a hostile witness (Sec. 5, ibid)

2. The rules governing the issuance of a subpoena to the witness in this case shall be the same as
when taking his deposition except that the taking of a judicial affidavit shal1 be understood to be
ex parte (Sec. 5, ibid).

Oral offer and objections to exhibits:

(a) Upon the termination of the testimony of his last witness, a party shall immediately make an
oral offer of evidence of his documentary or object exhibits, piece by piece, in their
chronological order, stating the purpose or purposes for which he offers the particular exhibit.
(Sec. 8, Judicial Affidavit Rule).

(b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his
objection, if any, to its admission, and the court shall immediately make its ruling respecting that
exhibit. (Sec. 8, Judicial Affidavit Rule).

(c) Since the documentary or object exhibits form part of the judicial affidavits that describe and
authenticate them, it is sufficient that such exhibits are simply cited by their markings during the
offers, the objections, and the rulings, dispensing with the description of each exhibit (Sec. 8,
Judicial Affidavit Rule).

It is not necessary to describe each exhibit in the offer of evidence. It is sufficient that such
exhibits are simply cited by their markings during the offers, the objections, and the rulings,
dispensing with the description of each exhibit since the documentary or object exhibits form
part of the judicial affidavits that describe and authenticate them.