Right to confrontation of a witness

The right to confrontation of a witness is one of the fundamental basic rights of an accused. It is ingrained in our justice system and guaranteed by no less than the 1987 Constitution as stated under its Article III, Section 14(2), to wit:

Section 14. (1) x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he       has been duly notified and his failure to appear is unjustifiable. (Emphasis supplied)

The right to confrontation is part of due process not only in criminal proceedings but also in civil proceedings as well as in proceedings in administrative tribunals with quasi-judicial powers. It has a two-fold purpose: (1) primarily, to afford the accused an opportunity to test the testimony of the witness by cross-examination; and (2) secondarily, to allow the judge to observe the deportment of the witness. (Savory Luncheonette v. Lakas Manggagawang Filipino, 159 Phil. 310, 315 [1975]; People v. Nicolas, 436 Phil. 462,476-477 [2002], cited in People v. Sergio, G.R. No. 240053, October 09, 2019)

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. However, the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. (G.R. No. L-38964. January 31, 1975)

The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. (G.R. No. L-38964. January 31, 1975)

In People v. De la Cruz (G.R. No. L-28110, March 27, 1974), one of the issues raised by appellant De la Cruz who was convicted of rape was that he was not accorded the right to cross-examine the complainant. The Supreme Court discarded this contention of appellant under the following circumstances:
  1. After the direct examination of the offended party on February 22, 1966, she was cross-examined but the cross-examination was not finished;
  2. Two days later or on February 24, the cross-examination was resumed at 10:00 o’clock in the morning but after a few minutes the examination was suspended;
  3. The case was then called at 10:35 that same morning for the resumption of the cross-examination. However, the counsel for the accused asked for postponement and so the hearing was moved to March 1, reserving to the defendant the right to continue with the cross-examination;
  4. No hearing was held, however, on March 1, after which other hearings were scheduled with the offended girl duly subpoenaed to appear at those hearings; and
  5. After some cancellations or transfers, the trial was resumed on June 27, 1966; on that date, June 27, counsel for the accused could have asked that he be allowed to continue the cross-examination but did not do so, and did not object when the Fiscal called his next witness, either because the counsel forgot or waived further cross-examination of the offended party.
Under the foregoing circumstances, the Court ruled that "it cannot be said the constitutional right of the accused to meet the witnesses face to face or the right to confrontation (Sec. 1[f], Rule 115, Rules of Court; Sec. 1[17] Art. III, Old Constitution) was impaired. Of course, the fact that the cross-examination of the complainant was not formally terminated is not an irregularity that would justify a new trial. The right to confront the witnesses may be waived by the accused expressly or by implication. (U.S. v. Anastacio, 6 Phil. 413; 4 Moran’s Comments on the Rules of Court, 1970 Ed., p. 201-2)

In State of Hawaii v. Brooks, 352 P 2d 611, the facts were as follows:

Defendant was convicted in the Circuit Court, First Circuit, City and County of Honolulu, of robbery in the second degree and when the case came up to the Supreme Court of Hawaii on a writ of error, one of the issues raised by appellant was that the trial court erred in refusing to allow him to cross-examine John Torres, a prosecution witness. The record showed, however, that when the prosecution asked leave of the trial court to withdraw Torres as witness after partial direct examination, counsel for the defendant made a reservation of his right to cross-examine when the witness is recalled. The prosecution, however, subsequently rested its case without recalling the witness. When defendant called the court’s attention to the fact that he had not had the opportunity to cross-examine, it was brought out that at one instance, the court asked counsel for the defendant if he wanted to cross-examine the witness who was then in the corridors, to which question the said counsel answered "YES!" The record does not show, however, that defendant pursued this point any further. No motion, no objection, no ruling and no exception was made or taken, nor did the defendant call the witness in question for cross-examination.

In overruling appellant’s contention that the right to cross-examine was impaired, the Supreme Court of Hawaii held that while the right to cross-examine a witness is fundamental and accepted as a basic right in the state’s judicial system, when, however, a party fails to avail himself of the opportunity to cross-examine, he forfeits such right, and the fact of the case conclusively showed that defendant was given an opportunity to cross-examine, and that appellant’s failure to proceed must be construed as an abandonment of his earlier desire or intention to cross-examine the witness and he cannot now be heard to contend that the trial court refused to permit said cross-examination. (State of Hawaii v. Brooks, 352 P 2d 611)