PUERTO RICO APPRAISERS AND REAL ESTATE SERVICES

PROUDLY SERVING PUERTO RICO & SURROUNDINGS OVER TWO DECADES

CONSEQUENCES OF APPEARING AS A WITNESS AT A DEPOSITION OR COURT HEARING

Diego Sorroche Fraticelli, MBA, ABAR, BCA, CMEA, EPA, CGA, MIE
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, The Appraiser as an Expert Witness, among others

To begin to understand the subject, we must point out that the “Reglas de Evidencia de Puerto Rico” and the Federal Rules
of Evidence, which 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

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 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 personally 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 if 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 own books, writings, articles and previously published reports on the subject, criticized
and generally accepted by peers;
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 whether such testimony can be
classified as expert testimony and admissible to be inserted as such 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 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, for “not being generally accepted by a significant segment of the scientific community”.
The “Daubert” trilogy consists of Daubert v. Merrell Dow Pharmaceuticals, (above) and:
Kumbo Tire v. Carmichael of 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, and:
“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 and 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.
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”.
Although Puerto Rico courts can be extremely lax on applying the Daubert Challenge, 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 P.R.), having
sworn before the Court to tell “the truth, all truth and nothing but truth!”
May 4, 2022

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