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by Tranquil G.S. Salvador III

Every witness presented by a party in court during the presentation of evidence cannot be detained longer than the interest of justice requires (Section 3(2), Rule 132, Rules on Evidence).

A witness cannot be examined after the conclusion of direct, cross, re-direct, and re-cross examinations (Section 4, Rule 132).

“After the examination of a witness by both sides…, the witness cannot be recalled without leave of court. The court will grant or withhold leave in its discretion, as the interests of justice may require” (Section 9, Rule 132).

“The matter of recalling witnesses ordinarily rests in the discretion of the trial court, and under the facts and circumstances of particular cases, such discretion has been held not to be abused by permitting or refusing to permit the recall of a witness” (Evidence, Francisco citing 98 C.J.S. 104-105).

“[D]iscretion… is not properly invoked… by an applicant’s mere general statement that there is a need to recall a witness ‘in the interest of justice,’ or ‘… to afford a party full opportunity to present his case,’ or that… ‘there seems to be many points and questions that should have been asked’ in the earlier interrogation” (People v. Judge Rivera, G.R. 98376, August 16, 1991).

“To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of witness no longer discretionary but ministerial. Something more than the bare assertion of the need to propound additional questions is essential before the Court’s discretion may rightfully be exercised to grant or deny [the] recall” (G.R. 98376, August 16, 1991).

“There must be a satisfactory showing of some concrete, substantial ground for the recall [such as]… that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner…”(G.R. 98376, August 16, 1991).

“In passing on a motion for leave to further [cross-examine witnesses], the trial court must consider the probable probative force of the matter sought to be developed in the light of evidence receive[d], and consider whether the new evidence would probably produce a different result” (Evidence, Francisco citing 98 C.J.S. 123).

“The party recalling the witness should not be obliged to make the witness his own and thus be deprived of the right to impeach him” (Evidence, Francisco citing State v. Rodriguez, 23 N.M. 156).

“The recalling of a witness for the purpose of impeachment is a matter resting in the discretion of the trial court…; a party cannot claim the privilege of recalling a witness for… impeachment as a matter of right (Evidence, Francisco citing 98 C.J.S. 383).

“The court may limit the scope of the examination of a recalled witness, and the examination must be limited to the matters concerning which leave to re-examine the witness has been granted.

“The scope and limits of the examination on recall are within the discretion of the trial court” (Evidence, Francisco citing 98 C.J.S. 105).

In the case of People v. Judge Rivera, et al., the Government, to establish the culpability of Wilfredo Sembrano, presented Benjamin Lee, a room boy of the restaurant and bath.

Lee testified on direct examination that Sembrano had run out of the VIP room where the fire had started and refused to heed his call to stop …(G.R. 98376, August 16, 1991).

“Lee took the witness stand again on April 26, 1987 during which he was cross-examined by defense counsel, gave additional evidence on redirect examination, was again questioned on re-cross examination by the same defense counsel, and thereafter allowed to step down” (G.R. 98376, August 16, 1991).

“The prosecution completed presentation of its evidence-in-chief in due course. But before it could rest its case, and two months or so after Benjamin Lee had completed his testimony, the defendant’s original counsel, Benjamin Formoso, withdrew his appearance and was substituted by another attorney, Eduardo S. Rodriguez” (G.R. 98376, August 16, 1991).

“The latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further examination.

“The ground relied upon by Atty. Rodriguez was simply that after he had reviewed the record of Benjamin Lee’s testimony, he [concluded] that ‘there seems to be many points and questions that should have been asked but were not propounded by the other defense counsel who conducted (the cross examination)’” (G.R. 98376, August 16, 1991).

The trial court granted the motion to recall Lee for further cross examination.

Efforts were exerted to cause witness Benjamin Lee to again appear before the court, but with no success, since he had terminated his employment and moved elsewhere without indicating his new address (G.R. 98376, August 16, 1991).

Thereafter, the private prosecutor filed a Manifestation and Motion drawing the trial court’s attention to the inability to procure the re-appearance of witness Lee, and that he had been previously thoroughly examined by the former defense counsel, and praying that further examination of Benjamin Lee be dispensed with (G.R. 98376, August 16, 1991).

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The trial court denied the motion to dispense with the recall of Benjamin Lee and ordered the testimony of Benjamin Lee for the prosecution be stricken off the record for lack of complete cross-examination, the reason being that the witness could no longer be found, and “the failure of counsel for the accused to further cross-examine the witness is not the fault of the defense” (G.R. 98376, August 16, 1991).

The trial court granted the motion to recall a witness on nothing more than said movant’s general claim that certain questions had to be asked.

In doing so it acted without basis, exercised power whimsically or capriciously, and gravely abused its discretion (G.R. 98376, August 16, 1991).c

In the same manner, the trial court “acted whimsically, capriciously, and oppressively, in other words, gravely abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared that he could no longer be found and produced for further examination” (G.R. 98376, August 16, 1991).

“In the first place, the Court acted unilaterally, without any motion to this effect by the defense and thus without according the prosecution a prior opportunity to show why the striking out should not be decreed.

“More importantly, the striking out was directed without any showing [whatsoever] by the defense of the indispensability of further cross-examination…” (G.R. 98376, August 16, 1991).

“It should be stressed that Lee was subjected both to cross-examination and recross-examination by former counsel of the accused Sembrano.

“Obviously, the latter was satisfied that there had been sufficient cross-examination of the witness [and] [a]bsence of cross-examination may not therefore be invoked as ground to strike out Lee’s testimony (as being hearsay)” (G.R.98376, August 16, 1991).

In the case of Castillo, et al. v. Sebullina and Torres, “the trial judge directed counsel for the plaintiffs to recall the witnesses whose testimony had already been taken at the former hearing; but this counsel declined to do [so], insisting on their right to rely upon the transcript of the notes of the testimony already taken” (G.R. 9181, September 29, 1915).

“The trial judge refused to admit or to consider the transcript of this testimony unless these witnesses were recalled to the witness stand, and again directed counsel for plaintiffs to recall their witnesses, stating he desired himself to hear the witness testify, to note their demeanor and conduct when testifying, and, if necessary, to cross-examine them” (G.R. 9181, September 29, 1915).

“No one can doubt the power of a trial judge in the course of a proceeding pending before him to recall and reexamine a particular witness, if he deems it advisable so to do for the development of the truth as to the issues he is called upon to adjudicate; and of course upon such reexamination he may repeat any or all of the questions asked in the examination in chief”(G.R. 9181, September 29, 1915).

“If [a judge] may recall one witness… he may recall all who have testified in the course of the trial, and the only limit upon his power…, other than the general rules touching the competence and admissibility of evidence, would seem to be the duty resting upon him not to subject the litigants or the witnesses to useless or unnecessary inconvenience, expenses, or delay” (G.R. 9181, September 29, 1915).