Consequences of Appearing as a Witness

At a Deposition or Court Hearing

To begin to understand the subject, we must point out that the “Reglas de Evidencia de Puerto Rico” (the Puerto Rico Rules of Evidence) and the Federal Rules of Evidence adopted in the district of Puerto Rico—which is part of the Second Circuit Court of Appeals—allow for expert testimony to be inserted into the “record” of a case in a deposition or in a court hearing, are basically the same. This article covers the significance of the Daubert standard and provides a summary of rules to temper the expert that does not feel constrained by professional ethical standards.

To begin to understand the subject, we must point out that the “Reglas de Evidencia de Puerto Rico” (the Puerto Rico Rules of Evidence) and the Federal Rules of Evidence adopted in the district of Puerto Rico—which is part of the Second Circuit Court of Appeals—allow for expert testimony to be inserted into the “record” of a case in a deposition or in a court hearing, are basically the same. This article covers the significance of the Daubert standard and provides a brief summary of rules to temper the expert that does not feel constrained by professional ethical standards.

The Federal Rules of Evidence passed in 1975 (as amended) apply to the Federal Courts, upon which states and jurisdictions, such as Puerto Rico, have developed their own rules of evidence. The Rules of Evidence of Puerto Rico were adopted by the Puerto Rico Supreme Court on February 9, 2009, and sent to the Legislative Assembly on February 26, 2009. They became effective January 2010, as amended.

There are several ways in which a person may appear as a witness at a deposition or at a court hearing. The effect on how such testimony affects the evidence depends on whether the witness is one of facts, a witness familiar with the subject matter, or as an expert witness or expert in the subject matter, and how the judge or guardian (gatekeeper), allows or does not allow the evidence to enter or not, to the “record” of the case.

The witness of facts testifies only about what is of personal knowledge about what has been seen or heard. The lay witness is a witness who does not testify as an expert but who can testify beyond what he/she has seen or heard, because of his/her knowledge on the subject and can issue opinions as long as they are based on what is the witness rational and personal perception. It can be useful to clarify the testimony poured or to strengthen a fact or matter. They cannot be based on scientific, technical, or specialized knowledge, as is required of an expert witness (See Rules 702 to 706 of the Federal Rules of Evidence and Rules 702 to 709 of the Rules of Evidence of Puerto Rico, on expert testimony).

Expert testimony on the other hand, is usually an opinion based on:

a) The scientific or technical or specialized knowledge and experience that assist the judge in better understanding and assessing the evidence and facts in the case;

b) Sufficient information or facts (including general knowledge of applicable laws and regulations) to enable you to issue an expert opinion that must be completely relevant, reliable, and credible;

c) The product of relevant and reliable theories, principles, methods, and processes outlined by recognized experts and scholars in the field, of the witness’s own books, writings, articles, and previously published reports on the subject, criticized and generally accepted by peers, and of common sense;

d) The expert witness correctly and reliably applies these to the facts and circumstances of the case, in a correct, complete impartial, objective, and independent manner, free from bias or prejudice in favor of or against the parties to the dispute.

The expert witness is required to demonstrate that his/her scientific reasoning and methodology is valid and can be applied to the facts and circumstances of the case. The judge is required to determine if the proposed expert is indeed an expert, whether the proposed opinion is admissible as expert testimony, and whether to include the testimony and/or expert report in the “record” of the case.

The expert witness is required to meet certain criteria that allows him/her to provide expert opinions. Such is the provision of the so-called trilogy of cases known as the “Daubert standard”, on the federal stage.

According to this standard, the opposing party can present the Daubert motion, which is a special “in-limine” (preliminarily, before anything else) motion, to prevent certain evidence not qualified as expert testimony be introduced “as if such”, and/or admitted and inserted into the “record” of the case, affecting the quality and credibility of the testimony and “allowing for the injustice for all” in a case.

The Daubert challenge to the witness is the result of a 1993 case, Daubert v. Merrell Dow Pharmaceuticals, that states that if the judge admits evidence of unorthodox expert testimony (of personal and creation of the witness) that is not based on accepted scientific best practices, if admitted creates an injustice for all. Some states and jurisdictions base their position on the subject in the Frye standard of 1923, which rules on the inadmissibility of a polygraph test as evidence in court “since the evidence shows that the scientific community does not accept the polygraph test results obtained as sufficiently conclusive.”

The Daubert trilogy consists of Daubert v. Merrell Dow Pharmaceuticals, (above) and:

• Kumbo Tire v. Carmichael (1999), which upholds the power of the judge to admit in evidence the testimony of an expert witness, including when it is not scientific in nature.
• General Electric v. Joiner (1977), which argues in review, that a district (federal) judge may exclude expert testimony when there are gaps between the evidence upon which an expert rests, his/her testimony, and whether there was “abuse of discretion” in the court’s decision to admit or exclude “expert” evidence.

This trilogy of cases assists the other party and the judge to qualify or disqualify the witness as an expert witness.

In Puerto Rico, the expert witness is advised to consult with the party’s attorney about the nature and extent of his or her expert testimony and to be aware that he or she is bound to comply with the decision of the PR Supreme Court of March 15, 2021, CC 2018-502 (McNeill Healthcare, LLC v. Municipality of Las Piedras, et. al) regarding that  “any communication of the expert witness with counsel is exposed to discovery of evidence and is not protected by the attorney-client rule”. That means e-mails, texts, and other communications between the expert, the attorney, client, and others consulted to develop an opinion are all subject to potential disclosure.

Conclusion

Although Puerto Rico State and Federal courts can sometimes be extremely lax on applying the Daubert challenge, experts have professional ethical duties and are cautioned that a credential that has been conferred does not confer expertise in all appraisal and damages matters. It is advised to any prospective witness not to attempt to unduly influence the Court through stratagems, falsehoods, or deceptions in the presentation of credentials and qualifications in order to try to establish that he/she is an “expert” in the field so that “expert testimony” be admissible in court; exposing himself/herself to perjury (criminalized in the Criminal Code of PR), having sworn before the Court to tell “the truth, all truth, and nothing but truth!”

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Diego Sorroche Fraticelli, MBA, ABAR, BCA, CMEA, EPA, CGA, MIE, is Principal of Puerto Rico Appraisers and Real Estate Services, a broad-based appraisal advisory firm based in San Juan, Puerto Rico. Mr. Fraticelli is also Director of the College of Ethics, Standards and Best Practices of Puerto Rico (CESBP), National Instructor of Uniform Standards for the Practice of the Profession of Professional Appraiser (USPAP), courses Laws and Regulations for Appraisers of Puerto Rico, and The Appraiser as an Expert Witness, among others.

Mr. Fraticelli can be contacted at (787) 400-9430 or by e-mail to diego@puertoricoappraisers.com.