Court is in Session

Photo: Victor Goodpasture Photography

The “From Investigation to Trial: Resilience in the Face of Adversity on the Stand” session at the 36th Annual ACFE Global Fraud Conference began with a mock trial composed of panelists, Stephanie Bifano, CFE, CPA, Mollie Brewster, CFE, and Trini Ross, CFE, JD.

Ross, acting as the opposing counsel, unleashed a barrage of questions at Bifano, the acting summary witness for the fictitious trial. As Ross questioned, attendees could see thought bubbles appear on adjacent screens, showing Bifano’s thought process on the metaphorical witness stand. “Where is she going with these questions?”, “Should I try to redirect?” and “Did anyone hear my stomach gurgle?”

However, through the questions, Bifano remained level and steadfast in her responses. But how can fraud examiners prepare for the witness stand and stay resilient in the face of adversity? Through stories of their own experiences as witnesses, and Ross’ experience as an attorney, the panelists shared the “dos” and “don’ts” of acting as a witness in the U.S. judicial system.

Summary vs. Expert Witness

A summary witness is called to synthesize large amounts of data and information admitted into evidence so it can be conveniently examined in court for the judge and jury to better understand. Summary witnesses were a part of the investigation and, notably, cannot offer opinions or conclusions of the evidence.

In contrast, an expert witness is someone who is called based on their experience, education, knowledge and/or training. An expert witness is allowed to offer opinions on the evidence provided.

Empowering Evidence in Cross Examination

Distilling Complex Information

Perhaps one of the more challenging aspects of serving as a witness is sharing the results of complex analysis with your audience. Brewster shared that in an early case in her career the prosecutor gave her the advice to make your exhibits simple and relatable, “Make them like you are teaching 5th graders.” As you prepare to testify, think about what you want the jury to remember and know. “You want to keep them engaged. You don’t want to lose the audience.”

Bifano explained that telling the jury about your methodology for creating your exhibits will help you during future cross-examination. As an example, she said, “I received a large data set in excel, I normalized the data, cleaned it up and presented it here in this graph.” Communicating your process upfront makes it more difficult for the opposing attorney to conflict.

Preparation is Key

Brewster also shared a story of how a mistake made by another person on the team involved in the investigation that was brought to trial resulted in hours of four separate attorneys focusing on that one mistake. She stressed that while the mistake could have been avoided, her resilience on the stand aided her.

Preparing for cross-examination is just as important as direct examination. “Do not overlook it”, Ross stressed. “Know the documents and the data, know it all. Records you may think are irrelevant during trial will become relevant.” Preparation is often overlooked.

Word Choice and Differing Perspectives

Bifano shared about her first time taking the stand. During her direct testimony at the beginning of the trial, she was asked “What are the duties of a forensic accountant?”, her response was, “I tell the financial story by reviewing and analyzing financial records.” While she believed this to be an accurate description of her work, she later learned the importance of word choice on the witness stand. The opposing lawyer latched onto her word choice of “story”, which could also be seen as a narrative, or a theory, not strictly as facts.

Ross reflected on a kidnapping case of a young Canadian woman who was being forced into marriage by her family. The kidnappers tried to bring her into the U.S. in the trunk of a car, where she was luckily found by border patrol. The report in the news was from the family’s side and asserted that she wanted to be smuggled into the U.S. When Ross recounted the story to her family member, they said, “there’s always two sides to every story.” Ross shared, humorously, that someone similar could be on your jury and to keep it in mind.

Managing Your Emotions on the Stand

A common topic during the session was the importance of remaining levelheaded during cross-examination. The panelists all shared examples of how opposing counsels tried to confuse witnesses, wanting them to offer more information or to make a mistake that could be later used. Bifano stressed, “Do not volunteer information, only answer the question that is asked.”

Bifano told attendees the importance of a pause to balance yourself. She shared that during cross-examination, you will need that pause because while the cross examination will purposefully try to confuse you, during that pause the jury will see that you are thoughtful even in a stressful situation.

In another example, Brewster looked back on when she was one of the analysts who was involved in the investigation into Bernie Madoff. She had to testify against the director of operations for Madoff. 

During her cross examination, she was shown three checks that she knew about, but were not a part of her testimony and she knew to be irrelevant. She referenced the thought bubbles in the beginning, “Where is she going with this?” and “Should I redirect?”. However, her team told her to answer the questions and stay on track. The cross examination continued for hours, then there were five minutes of redirect, which showed the irrelevance of the checks and prompted the jury to laugh at the ridiculousness of the situation. Her discipline and ability to stay focused worked in her counsel’s favor.

Finally, the panelists closed out the session by comparing preparing for trial to training for an endurance test. They recommended getting a training partner who will support you and play the role of devil's advocate to help you identify potential issues so you can prepare. And like a race, they urged attendees to take care of themselves before a trial, get ample rest and breathe.