How to Testify. Qualifications for Testimony. Hugo A. Holland, Jr., J.D., CFE Prosecutor, State of Louisiana

Transcription

1 How to Testify Qualifications for Testimony Hugo A. Holland, Jr., J.D., CFE Prosecutor, State of Louisiana 2018 Association of Certified Fraud Examiners, Inc.

2 CPE PIN Instructions 2018 Association of Certified Fraud Examiners, Inc. 2 of 27

3 Introduction Testimonial evidence is evidence presented in the form of statements made during a legal proceeding, an administrative hearing, or a deposition. Specific requirements govern the admissibility of testimonial evidence, depending on the type of witness and the manner in which the witness is testifying Association of Certified Fraud Examiners, Inc. 3 of 27

4 Sources of Testimony Observations Investigations Calculations and summaries Research Opinions 2018 Association of Certified Fraud Examiners, Inc. 4 of 27

5 Information Versus Evidence Information consists of all facts, documents, observations, statements, or other indications of what happened. Evidence is information that is presented to the judge or jury under the supervision of the judge to prove or disprove an alleged fact at issue Association of Certified Fraud Examiners, Inc. 5 of 27

6 Information Versus Evidence The fraud examiner must not let concerns about the admissibility of investigative information or leads limit the scope or tenacity of the examination. All witnesses should work closely with their lawyers to make sure that all important information can be presented as evidence Association of Certified Fraud Examiners, Inc. 6 of 27

7 What Is Hearsay? A statement Made outside the court s supervision Offered to prove the truth of the matter asserted 2018 Association of Certified Fraud Examiners, Inc. 7 of 27

8 Admissibility of Hearsay The hearsay rule only applies to statements offered to prove the truth of the matter asserted. Exceptions to the hearsay rule include: Admissions Business records Public records or reports Absence of public record or entry Market reports, commercial publications 2018 Association of Certified Fraud Examiners, Inc. 8 of 27

9 Other Admissibility Considerations Best-evidence rule Photocopies as evidence Admissibility of business records 2018 Association of Certified Fraud Examiners, Inc. 9 of 27

10 Can Summaries Be Introduced? Voluminous evidence that cannot be conveniently examined in court may be presented in the form of a chart, summary, or calculation. Originals must be available for examination or copying by other parties Association of Certified Fraud Examiners, Inc. 10 of 27

11 Types of Evidence Testimonial evidence Real evidence Demonstrative evidence 2018 Association of Certified Fraud Examiners, Inc. 11 of 27

12 Determining the Relevance of the Evidence Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Simply because evidence is relevant does not mean that it will be deemed admissible Association of Certified Fraud Examiners, Inc. 12 of 27

13 Grounds for Excluding Relevant Evidence Its probative value (tendency to prove an issue) is substantially outweighed by the danger of: Unfair prejudice Confusion of the issues Misleading the jury It raises efficiency concerns: Undue delay Waste of time Needless presentation of cumulative evidence 2018 Association of Certified Fraud Examiners, Inc. 13 of 27

14 Role of the Judge Serves as gatekeeper at trial May exclude evidence on the grounds of: Hearsay Irrelevance Potential for causing confusion Possibility for prejudice to another litigant 2018 Association of Certified Fraud Examiners, Inc. 14 of 27

15 Consulting with the Attorney Consult on questions of evidence. Discuss and resolve any concerns before the evidence is to be presented. Rules of procedure greatly curtail the ability to consult with counsel at trial Association of Certified Fraud Examiners, Inc. 15 of 27

16 Opinion Testimony by Lay Witnesses Generally, lay witnesses must testify from firsthand knowledge that is, their actual perception of events. A lay witness may testify in the form of an opinion when such opinion is: Rationally based on the perception of the witness Helpful to a clear understanding of the witness s testimony or the determination of a fact in issue 2018 Association of Certified Fraud Examiners, Inc. 16 of 27

17 Opinion Testimony by Lay Witnesses Lay witnesses are commonly allowed to testify regarding: The appearance of persons or things Identity The manner of conduct Competency of a person Degrees of lightness or darkness Sound, size, weight, or distance State of mind, including intent 2018 Association of Certified Fraud Examiners, Inc. 17 of 27

18 Lay Versus Expert Testimony As courts have become stricter about allowing experts to testify, many attorneys attempt to work around this obstacle by offering their experts as lay witnesses and then proceeding to elicit expert opinions on the desired topic Association of Certified Fraud Examiners, Inc. 18 of 27

19 Amended FRE 701 Bars lay witnesses from providing opinions based on scientific, technical, or other specialized knowledge Does not bar an expert from testifying as a lay witness 2018 Association of Certified Fraud Examiners, Inc. 19 of 27