Cross-examination, when forfeitable

When a person’s liberty is at stake, he must have all the chances to cross-examine the witnesses of the prosecution to prove his innocence, if in case they are fabricating lies against him

Cross-examination is a person’s right to question the other party’s witness during a trial. Indeed, it is vital in litigation. Not only is the party able to test the credibility and truthfulness of the witness, but it also affords the court to observe his demeanor. Lots of times, the court can detect when the witnesses are just covering up for the party. Their actions, gesticulations, and tone of voice give them away.

That is why it is all the more, more important in criminal cases. When a person’s liberty is at stake, he must have all the chances to cross-examine the witnesses of the prosecution to prove his innocence, if in case they are fabricating lies against him.

Thus, the Supreme Court, accordingly discussed in Kim Liong v People of the Philippines (G.R. 200630, 4 June 2018) how protected the right of cross-examination is and its import. “The fundamental rights of the accused are provided in Article III, Section 14 of the Constitution… (1) No person shall be held to answer for a criminal offense without due process of law;

(2) In all criminal prosecutions the accused shall be entitled to be presumed innocent until the contrary is proved and shall enjoy the right… to meet the witnesses face to face.

‘To meet the witnesses face to face is the right of confrontation. Subsumed in this right to confront is the right of an accused to cross-examine the witnesses against him or her, i.e., to propound questions on matters stated during direct examination, or connected with it. The cross-examination may be done with sufficient fullness and freedom to test [the witness’] accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.”

Do take note, however, that this is not an absolute right. This can be waived expressly by the party or declared such by the court because of said party’s fault. In the same case I cited, the accused was given a chance to cross-examine the witness. He, through different and subsequent counsel, however, sought the many postponements of the cross-examination for various reasons. The witness was already set for cross-examination on 15 March 2007. The hearings, however, were constantly reset. It was one postponement after another, until the private prosecutor on 27 August 2009, or more than two years later, already asked the court to forfeit the accused’s right to cross-examine. And readily, the court granted it. Of course, the accused vehemently opposed this. He argued deprivation of his day in court by being unable to cross-examine the witness. Neither the trial court nor the Court of Appeals, where the accused elevated the matter, gave in to his plea.

So when the Supreme Court took cognizance of his case, this is what it had to say. “[L]ike any right, the right to cross-examine may be waived. It is a ‘personal one which may be waived expressly or impliedly by conduct amounting to renunciation of the right of cross-examination.’ When the accused is given the opportunity to cross-examine a witness but fails to avail of it, the accused shall be deemed to have waived the right… When the accused abuses his option to choose counsel as in this case, he can be deemed to have waived his right to confrontation and cross-examination. The pattern of postponements and changes of counsel, in this case, is so obvious and patent. Petitioner should have been dissuaded by any of the lawyers,… in such an amateurish strategy, which wastes the time and resources of our judicial system.”

So what is the moral of the story? While you have the fundamental right to cross-examine, as guaranteed by no less than our Constitution, such is not absolute and unforfeitable. If you abuse this right or use it as a dilatory tactic to unnecessarily prolong the proceedings, the court will not hesitate and gladly take it away from you.

“The facts and quoted provisions are from Liong v People of the Philippines as cited above.”


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