Recalling a Witness

Recalling a witness

Sec. 132, Rule 9 of the Rules of Court states the rule on Recalling a Witness: “Sec. 9 Recalling a witness – After the examination of a witness by both sides has been concluded, 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.” Justice Regalado in his Civil Procedure Book discussed the rule on recalling a witness, to wit: “Where all sides in the case have concluded their examination of the witness, his recall for futher examination is discretionary with the court as the interest of justice requires. However, where such examination has not been concluded, or if the recall of the witness was expressly reserved by a party with the approval of the court, then his recall is a matter of right.” From this, it can be inferred that Recalling a witness is discretionary upon the court. However, you may recall the witness in the following instances: 1. Examination has not been concluded; 2. Recall of the witness was expressly reserved by a party with the approval of the court. In the case of People of the Philippines vs. Hon. Rivera et.al 1, the court discussed the requirements in recalling a witness. In this case, it was emphasized that when moving to recall a witness, mere generality of the need is not sufficient. What is essential is more than the bare assertion of the need to propound additional questions before the Court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some 1 G.R. No. 98376August 16, 1991

concrete, substantial ground for the recall. The pertinent part of the decision in the case is as follows: The writ of certiorari prayed for will issue. The Trial Court

acted

with

grave

abuse

of

discretion

in

authorizing the recall of witness Benjamin Lee over the objections of the prosecution, and in later striking out said witness' testimony for want of further crossexamination. There is no doubt that a Trial Court has discretion to grant leave for the recall of a witness. This is clear from a reading of Section 9, Rule 132 of the Rules of Court, as amended,

9

viz.:

SEC. 9. Recalling witness.— After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. But obviously that discretion may not be exercised in a vacuum, as it were, entirely, isolated from a particular set of attendant circumstances. The discretion to recall a witness is not properly invoked or exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and questions that should have been asked" in the earlier interrogation. 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 recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant's part, for instance, that particularly identified material

points

examination,

or

were that

not

covered

particularly

in

the

described

crossvital

documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no foundation for a trial court to authorize the recall of any witness. In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than said movant's general claim that certain questions — unspecified, it must be stressed — had to be asked. In doing so, it acted without basis, exercised power whimsically or capriciously, and gravely abused its discretion.