Forensic Review Of White Collar Financial Evidence
Federal Prison Consultants, LLC does not serve as defense counsel for White Collar defendants. We serve on an "as needed basis" as outside experts, if and as requested by your
defense counsel -- when complex financial matters are put into play by White Collar charges
anticipated or filed.
Time is of the essence in defending White Collar charges. If you are about to be charged or have been - and do not have an attorney experienced in White Collar crime, obtain good counsel -- or we can recommend several.
If brought on board early, experienced defense counsel can often work informally with
prosecution to prevent an indictment -- or to craft a more favorable plea if deemed advisable by your counsel. Most cases do not go to trial, but that requires skillful negotiation.
If you are indicted, things move quickly. It is essential that experienced counsel be brought on-board early, to be given time to leverage what advantages you may have before indictment or early in the case.
Flavors Of White Collar Crime
White Collar crimes are listed in Federal or State statutes and in ever-changing case law.
Many have a unique definition, and that definition can vary from jurisdiction to jurisdiction.
Each White Collar crime has a unique "Prima Facie" template that the prosecutor must consult before he/she decides to file a case, to avoid having it dismissed later for insufficient evidence.
As you know, if the case is not dismissed, the prosecutor's second hurdle is to convince all jurors (assuming a jury trial) beyond a "Reasonable Doubt" that EVERY SINGLE ELEMENT of the Prima Facie case has been satisfied.
Some of the statutory classes of White Collar crime:
--Antitrust
--Bankruptcy Fraud
--Bribery And Gratuities
--Computer/Internet Crime
--Conspiracy
--Corporate And Individual Liability
--Corruption
--Currency Transactions, Counterfeiting and Forgery
--Environmental Crimes
--Economic Espionage
--Financial Fraud, Embezzlement and Credit Card Fraud
--False statements
--Fraud in Government Contracting and Healthcare
--Forfeitures
--Insurance Fraud
--Kickbacks
--mail and Wire Fraud
--Money Laundering
--Obstruction Of Justice
--RICO
--Securities Fraud And Insider Trading
--Tax Crimes
Putting The Prosecutor's Financial Theory
Through A
Pre-Trial "Acid Test"
Expert financial testimony is critical in many White Collar
prosecutions, both on the conviction side and the acquittal side. Before and during trial,
the prosecutor's financial experts needed to be tackled head on, to undermine the strength
of the prosecutor's case.
Most defense firms do not have financial experts as full-time employees.
Each outside expert speaks a peculiar jargon. At Federal Prison Consultants, LLC, we speak
the language of outside financial experts, as well as the language of the prosecution and
your defense counsel. We have years of experience of seeing how financial jargon and
testimony does -- or does not -- translate to lay juries.
Our experience is not in certifying financial statements for the SEC, but in gauging
what kinds or presentations of financial evidence is historically not persuasive for a
jury of non-experts.
In a White Collar case, if there are 12 persons on a jury, it will not be 12 CPA's
or 12 Economists or 12 CFO's, but a cross section of citizens from various age, gender,
social, educational and work experience levels.
If the prosecutor's financial experts believe their testimony is akin to certifying
a financial statement to the SEC or passing the state CPA exam, that can play into the
hands of defense counsel.
When "Gut Feel" Equals "Reasonable Doubt"
At the end of a complex trial, a jury of lay persons often goes by "gut feel" in
dealing with technical financial matters -- partly because the details from the expert
witnesses has been forgotten by many jurors -- if understood in the first place.
The phrase "gut feel" is not to be found anywhere within "generally accepted accounting
principles" or SEC regulations.
When stakes are high, Federal Prison Consultants, LLC has access to outside expertise
to perform an "acid test" review of the prosecutor's theory of the likely financial
evidence before trial.
Many times, we learn most from prosecution cases that were lost, and why. Other times,
a few key questions put to an expert at trial -- answered in a way that a lay jury could
understand and remember -- carried the day.
Both the strong and weak points of the prosecutor's financial theory, from a scathing
forensic review, can be important to your defense counsel as he or she decides what kind of
expert and what kind of testimony is needed to rebut or to persuasively tell your side of
the story.
Having an outside, objective view of both the strong and weak points of the prosecutor's
financial theory, during trial preparation, can be an important way to eliminate surprise
at trial.
Targeting The Weak Points In Financial Evidence
Our "acid test" Forensic Review searches out and targets those elements of technical
financial testimony that may be most likely to confuse or cause a sense of "reasonable
doubt" in at least one member of the jury.
As a starting point, the permutations for "Reasonable Doubt" in a juror's mind could
include any combination of the following:
- the prosecutor's evidence was so technical as to not be understandable at all, and
therefore not persuasive enough in the mind of at least one juror to meet the state's
burden;
- the prosecutor's financial evidence was understandable enough, but it had enough
"holes" in it to trouble at least one juror;
- on key points of contention, the defense's financial evidence made more sense or
"felt better" than the prosecutor's.
If You Have Been Formally Charged
Once you are represented by counsel and if your counsel deems necessary, we can perform
an expert Forensic Review of the financial elements of the prosecutor's "Prima Facie"
case in chief.
If requested, we put the prosecutor's theory of the case through an "acid test" to
show which financial evidence is most vulnerable for attack by defense experts - based
upon the Prima Facie case that must be sustained.
If needed, we can assemble a "Shadow Jury" of representative jury persons to test both
the prosecutor's financial case against you and your defense - again to look for any weak
spots in prosecutor's case before you go to trial, whether it be the underlying assumptions by an expert witness, the statistical methodology, or whether the expert's qualifications
and expert knowledge are not on point, or whether the expert testimony may be vulnerable
to a collateral attack from another angle.
After Defense Financial Experts Are Lined Up
If requested, we can also do a Forensic Review of the financial strengths and
weaknesses of your planned defense.
We can interview any one of your proposed experts, and speak with him in his or her
technical language, about the critical evidence that would favor the prosecution and the
defense -- always looking for the "winning edge". We will immediately report our findings
to your counsel to be used as he/she deems necessary in discovery or at trial.
In most of these types of crime, the Sarbanes-Oxley Act looms overhead with its
increased fines and criminal penalties.
Because each trial is different, one size of defense does not fit all.
Forensic Review Of Financial Evidence of The "Prima Facie" Case -
*For the first corporate or individual count charged*
Including survey of financial procedures in your industry
- $3,500 retainer
*For each subsequent corporate or individual criminal charge*
- $1,500 retainer per additional charge
*Financial Document Review*
- Hourly rate of $350 per hour, with forensic review proceeding upon advance
payment of a $6,000 retainer for document review.
Federal Prison Consultants, LLC will report weekly to defense counsel as to findings
and progress.
If our forensic review of financial documents suggest the need for a specific kind of
expert to be called on a key issue, we immediately notify defense counsel.
At the end of the document review, Federal Prison Consultants, LLC will report to
defense counsel its findings, including any recommendations of weak areas to attack the
credibility, training, assumptions, veracity, findings or conclusions of the prosecutor's
financial expert.
Upon payment of a $20,000 retainer, Federal Prison Consultants, LLC will assemble
a 12 person jury for one day of Shadow Jury service. It will be composed of adult voters
who match the approximate age, ethnic, educational and cultural mix requested by defense
counsel.
The retainer for one 4 hour session is $10,000.
Base Package -- One Day
During two 3 hour periods, defense counsel can "put on" one expert witness and run through
anticipated direct testimony and a mock cross-examination, for the Shadow Jury to hear and
respond to. Afterward, each member of the jury will answer in writing up to 30 standardized
YES/NO or multiple choice questions that defense counsel believes are key elements to this
expert witness's testimony. (Narrative answers will not be solicited in writing, because
all answers need to be summarized and posted to a database across the 12 jurors.
Federal Prison Consultants, LLC will prepare a database of these 30 questions, and
cross-correlate the responses across all 12 jurors and their various profile characteristics. For example, this kind of correlation may show that certain types of jurors
have more difficulty in understanding or accepting a given piece of key testimony than others.
Federal Prison Consultants, LLC will prepare a written report to defense counsel of
all answers given to each of the 30 questions, indexed and statistically correlated by
demographic profile.
For "hot button" responses that could pose problems for that expert's testimony, we will
identify any patterns in type of juror that evidenced difficulty in understanding or
being persuaded by the testimony.
Pre-trial intelligence can prove invaluable in juror selection, or in guiding the expert
into a more understandable presentation for the jury.
If in the two 3 hour periods, the defense counsel has time to present an additional
expert witness, that would require an additional $4,000 retainer because each juror
will need to complete a second questionnaire. A separate statistical correlation report
will be prepared for each such expert, based upon a unique set of 30 questions from defense
counsel.
Once the jurors fill out their written questionnaires on each expert, defense counsel
may want to speak with the Shadow Jurors as a group, to seek their verbal responses on a few
points. For example, defense counsel could ask if there are additional points that might
have been raised during direct or cross examination, that would have helped a given juror
understand or be persuaded one way or another.
A similar method of audience sampling is performed by TV networks before each season,
before they commit millions of dollars for a new series. Pilot audiences not only evaluate
whether they liked the plot, but what they thought of the chemistry or believability of the
actors, etc.
Obviously, the stakes are high in a White Collar case. It pays to be prepared with some idea of how complex financial evidence will actually be perceived by each subgroup of a
likely jury pool. That's where we come in.
Naturally, there is no way to predict what a given jury will do, or which key points will
end up being persuasive for either side.
Without a Shadow Jury, the temptation for both prosecutor and defendant is to presume
that jurors will see the evidence from their educational or cultural vantage point - which
could be an unfortunate assumption. That is the same kind of assumption that a prosecutor
can make if his/her expert believes his testimony to a lay jury is the same transaction as
certifying a financial statement for the SEC.
By experience, Hollywood has learned that it needs to carefully sample audience input
before the "big show" goes on and millions of dollars are expended on concepts that don't
"fly" with the actual audience. Even then, there are no guarantees.
Too often, the worst thing that can happen in any trial is surprise.
Our expertise is to work with your counsel to reduce the element of surprise.
