Making sense of gobbledygook

Surprise witnesses, damning evidence and courtroom confrontations have undoubtedly made President Estrada’s impeachment trial the most popular afternoon fare on local television.

But as much as viewers find enjoyment in the televised trial, they often complain about the fuzzy lawyers’ dialogue, or the legal gobbledygook that accompanies examination or cross-examination of witnesses.

Most non-lawyers have an idea of what a "subpoena" is. But the difference between a subpoena duces tecum and a subpoena ad testificandum – what kind of animals are those?

Unfortunately, the impeachment trial is not a Mexican telenovela that TV stations can simply dub or provide subtitles with. So as a form of public service, private lawyers and state prosecutors interviewed by The STAR offered to provide a short glossary of terms to help simplify the legal jargon used in the historic trial.

They explained that a subpoena duces tecum is a summons, or an invitation of a compulsory nature "to bring documents" while a subpoena ad testificandum refers to a summons for an individual "to testify personally."

In yesterday’s hearings two new terms were introduced – factum probandum and factum probans. The former, lawyers explained, refers to "a fact or proposition sought to be established" while the latter refers to "the evidence used to establish such a proposition."

When a lawyer explains to the court that they are merely "laying the predicate," this simply means that they are "providing the basis or foundation" on which an allegation or complaint has been made.

The often-mentioned "stipulation" refers to a process wherein both prosecution and the defense agree on certain points "that are not really contentious." Stipulations, which in effect bind the two parties, are generally made to help speed up the proceedings.

On the other hand, a "deposition" refers to the taking of sworn statements, not in open court, but somewhere else with the presence of both counsels for both parties. Here, no rulings are made and objections are merely noted.

In the impeachment trial, the witnesses have proven to be the star attractions. But before anyone starts singing praises for Clarissa Ocampo or forming their own opinion on Delia Rajas, a short classification is in order.

An "adverse witness" is a person belonging to the opposing party but one who has to be presented in court by the other party to prove that a certain incident really occurred.

On the other hand, a "hostile" witness is one who is often referred to as an "unwilling witness." Upon cross-examination, such witness may answer questions not agreed upon between himself and his lawyers prior to his testimony.

There are also several types of evidence, namely: ultimate, parol (not parole) and best.

"Ultimate" refers to basic facts that describe or support the lawyer’s or complainant’s allegations.

"Parol" may refer, for example, to a missing document that a lawyer may want to prove the contents of by allowing someone who wrote it or was privy to the writing to testify that such contract exists.

As for "best," this refers to the most credible evidence as in the actual document itself. For example, Security and Exchange Commission records would be the best proof that one person was an incorporator of a certain company.

Finally, there is the subject of "burden of proof," which Chief Justice Hilario Davide would gladly elaborate on, if asked.

In all instances, the burden of proof, or the task of proving whether or not a crime was committed by the accused, always rests with the prosecution. Only when this is established, does the burden shift to the defense lawyer, who has then the task to rebut and contest each piece of evidence presented against his client.

That may be all for Law 101. Class dismissed.