Guest Author - Consuelo Herrera, CAMS, CFE
Plaintiffs and defendants have the same opportunity to seek help from forensic accountants. This case provides a clear understanding for expert witnesses on how to ensure that his or estimations prevail or remain standing in a court of law. There was a case where one of the implicated complained about the court overstepping its discretion in denying their request for a forensic accountant to assist in establishing the total loss for which they could be held accountable at sentencing.
From United States Court of Appeals for the Fourth Circuit US v. Hayez:
“Under the Criminal Justice Act of 1964, see 18 U.S.C. § 3006A, the district court may, at its discretion, authorize appointed counsel "to obtain investigative, expert, or other services necessary for adequate representation," provided the expertise is necessary "and that the person is financially unable to obtain them." Id. In this case, the district court determined that a forensic accountant was unnecessary, as "the evidence presented at trial and the arguments set forth in the government's sentencing memorandum" indicated that the loss exceeded $1.5 million by a wide margin. In this case, the Court exercised its discretion by a court's denial of authorization for an expert witness, which was considered by some as an abuse of discretion.
When appealed, the Upper Court stated: “We find no abuse of discretion under the present circumstances. The Sentencing Guidelines permit a sentencing court to make "a reasonable estimate of the loss" based on the evidence presented. USSG § 2F1.1, cmt. n.8 (1998). Here, the loss figure underlying the Appellants' sentencing calculations was based on evidence and testimony presented at trial. The Appellants were able to cross-examine the witnesses who testified as to loss in order to probe the validity of their calculations and the manner in which the final numbers were derived. Finally, the records substantiating these estimations of loss were presented at trial and explored in some detail. Because the method used in calculating the loss was clear, as was the foundation for the loss figures presented by the United States at trial, we find no error in the district court's denial of a court-appointed forensic accountant.”
The excerptS above shows two things related to forensic accountants:
1. If the calculations can be proven “reasonable,” they will stand the cross-examination process. The calculation of a loss or any other amount has to be straightforward so that even a lay person can understand the manner in which the numbers were derived.
2. Every calculation made by a forensic accountant hast to be properly substantiated, that way even if a sentence is appealed, the estimations stand firm.
Estimations that prevail in legal proceedings must be substantiated, "reasonably" accurate, and supported by calculations easy to understand.