Striking out an answer of a witness

ONE of the lessons a lawyer learns in court is how to move to strike out the answer of a witness.

The court can only order the striking out of answers upon proper motion of the concerned or affected party.

The lawyer must be ready to interpose an objection to an incompetent, irrelevant, or improper question. However, it may happen that a witness gives an answer to a question despite the speed at which the lawyer objects to it. The remedy of the objecting lawyer is to move to strike out the answer.

Under the 2019 Rules on Evidence, the grounds on which striking out the answer of a witness is permissible, are as follow: (a) when an answer is given before the adverse party fully voices the objection; (b) when an answer is not responsive to the question; (c) when an answer is given without a question being posed or when it is beyond the limits set by the court; or (d) when the answer given is a narration and not a response to a question (Section 39, Rule 132).

It may happen that incompetent evidence “is received conditionally on the assurance of [the] counsel that he will supply [the] necessary [evidentiary] foundation, [but] which [if] he fails to do, the court should exclude the evidence on its own motion, or, the objecting party should move to exclude it” (Francisco, Evidence citing 58 Am. Jur. 134-135).

The motion to strike the answer must be made before the witness examination is terminated or concluded

“Where a witness answers a question before an objection can be interposed, and the court thereafter sustains an objection to the question, it has been held that the answer to the question cannot be considered as evidence in the case even though no motion to strike the answer is made” (Francisco, Evidence citing 88 C.J.S. 267-269).

“A motion to strike out evidence may be directed against a particular item of evidence on the testimony of a particular witness or some part thereof, or it may be for the purpose of having all the evidence stricken out…it should specify the grounds upon which it is based… all other grounds are thereby waived” (Francisco, Evidence citing 55 AM. JUR. 132).

“A party cannot insist that competent and relevant evidence be stricken out for reasons going to its weight, sufficiency, or credibility… [neither can he] move to strike it out because it proves unfavorable to him, even though it is inadmissible” (Francisco, Evidence citing Mobile Light v. Portiss and Fidelity & Casualty Co… v. Griner).

“The court may, on motion, strike out part of an answer where the meaning of the part left is not changed thereby; but cannot strike out qualifying words in the answer thereby changing it into a positive statement, or strike out a part of an answer so as to leave it unintelligible” (Francisco, Evidence citing 88 C.J.S. 287).

“Evidence may be stricken on motion, on the ground that it is wholly incompetent, immaterial, or irrelevant, and prejudicial” (Francisco, Evidence).

An answer of a witness that has no relation to the fact in issue or irrelevant can be stricken from the records upon proper motion.

However, there are instances when irrelevant, immaterial, or prejudicial questions are allowed to remain in the records subject to the discretion of the court.

While the grant or denial of the motion to strike is left to the court’s discretion, “the right to have it stricken is not subject to the discretion of the court.”

WHEN I was teaching English, Literature and History in high school at the old Ateneo de Manila in the fifties before it became a university, I had often wondered why all the national heroes in history books were all from Luzon, and not one mentioned as being from the Visayas and Mindanao, Santa Banana!

I found the answer when I realized that all the historians writing Philippine history books were all from Luzon.

It’s for this reason that when Cagayan de Oro Rep. Rufus Rodriguez filed Bill 1461 or the Mindanao Heroes Declaration Act wanting 12 Mindanao revolutionary heroes declared as national heroes I decided to support his bill. There is really a great need to correct the serious error that only those from Luzon should be written in Philippine history books.

Yes, there was one historical figure mentioned, that was Lapu Lapu, the island chieftain from Mactan. Chief Lapu Lapu is credited to have killed the person who discovered the Philippines for Europe, Portuguese Ferdinand Magellan who sailed under the flag of Spain.

The bill of Rodriguez declared that no less than 12 Mindanaons and Visayans be made national heroes for leading the Filipinos’ fight against Spanish and American colonizers.

Sadly, there is no hint of these Mindanao heroes in history books who fought valiantly against Spanish and American colonizers.

House Bill 1461 mentions the 12 Mindanao heroes as the following :

General Nicolas Capistrano

Colonel Velez

Captain Vicente Roa

Simeon Ledesma

Rufino Delosa

Captain Daligdig

Simeon Gonzales