4Ed_CCH_Forensic_Investigative_Accounting_Ch09

4Ed_CCH_Forensic_Investigative_Accounting_Ch09 - Forensic...

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Unformatted text preview: Forensic and Investigative Accounting Forensic Chapter 9 Proper Evidence Management © 2009 CCH. All Rights Reserved. 4025 W. Peterson Ave. Chicago, IL 60646-6085 1 800 248 3248 www.CCHGroup.com Rules of Evidence The rules of evidence are the rules governing The the admissibility of evidence in a legal proceeding and the weight to be given to evidence that is admitted. evidence Chapter 9 Forensic and Investigative Accounting 2 What Is Evidence? Evidence is testimony, writings, and material objects offered to prove an alleged fact or proposition. fact Direct evidence is evidence that directly proves a fact at issue, without the need for any inference or presumption. any Circumstantial evidence is evidence from which a fact at issue may be proved indirectly. indirectly. Chapter 9 Forensic and Investigative Accounting 3 Relevance Requirement Circumstantial evidence. Inflammatory evidence. Evidence about plaintiff’s character. Evidence of habit. Exclusionary rules. Evidence of liability. Chapter 9 Forensic and Investigative Accounting 4 Privileged Communications Attorney-client privilege. – Employee communications. – Work product rule. – Attorney-requested accounting work. Medical privilege. Spousal privilege. Other types. – Religious. – Governmental. Chapter 9 Forensic and Investigative Accounting 5 Hearsay Rule Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. the As a general rule, hearsay is not As admissible as evidence in a legal proceeding (except by an expert witness). proceeding (continued on next slide) Chapter 9 Forensic and Investigative Accounting 6 Hearsay Rule In some situations a statement that appears to In be hearsay is offered to prove a fact other than the matter asserted: the – Legally operative fact. – Effect on the listener. – State of mind of the declarant. – Impeachment. (continued on next slide) Chapter 9 Forensic and Investigative Accounting 7 Hearsay Rule There are three concepts underlying the There exceptions to the general rule barring hearsay: exceptions – Trustworthiness. – Unavailability of the declarant. – Practical considerations. Chapter 9 Forensic and Investigative Accounting 8 Authentication Requirement To be admissible as evidence in a legal To proceeding, a document or other material usually must be authenticated or identified as to what its proponent claims it to be. to Chapter 9 Forensic and Investigative Accounting 9 Best Evidence Rule Under the best evidence rule (also referred Under to as the original writing rule), to prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph usually must be presented. or Attorneys can get around this rule. Chapter 9 Forensic and Investigative Accounting 10 Demonstrative Evidence Demonstrative evidence is an item that illustrates testimony but has no probative value in itself (such as a chart, diagram, photograph, video, or model). photograph, Chapter 9 Forensic and Investigative Accounting 11 Special Rules Criminal cases. Administrative proceedings. – Tone of the proceedings. – Residuum rule. Chapter 9 Forensic and Investigative Accounting 12 Residuum Rule The residuum rule is that no finding may be The supported solely by hearsay evidence. supported Chapter 9 Forensic and Investigative Accounting 13 Maximizing Client Confidentiality Michael Mostek, in Expert Witnessing in Forensic Michael Accounting, provides the following advice for protecting Accounting provides the work product privilege: the – The attorney should directly retain the consultant. – The agreement should be between attorney and The expert. expert. – The expert should obtain facts through, or at the The direction of, the attorney. direction – The investigation should be done at the direction of The the attorney. the – The attorney should be present when the consultant The meets with the client. meets Chapter 9 Forensic and Investigative Accounting 14 AICPA Top Technologies Task Force The task force found the following top ten The technologies for 2007 in descending order of importance: importance: 1. Information security management. 2. Identity and access management. 3. Conforming to assurance and compliance Conforming standards. standards. 4. Privacy management. (continued on next slide) Chapter 9 Forensic and Investigative Accounting 15 AICPA Top Technologies Task Force 1. Disaster recovery planning (DRP) and Disaster business continuity management (BCM). business 2. IT governance. 3. Securing and controlling information Securing distribution. distribution. 4. Mobile and remote computing. 5. Electronic archiving and data retention. 6. Document, content, and knowledge Document, management. management. Chapter 9 Forensic and Investigative Accounting 16 Using Technology to Gather Evidence Drill-down functionality. Electronic imaging. Benford’s law. Digital Analysis Tests and Statistics (DATAS). Data warehousing/mining. Data extraction versus data investigation. Inductive vs. deductive method. Chapter 9 Forensic and Investigative Accounting 17 Computer Evidence Protecting data in hardware seizures. Insidious e-mails. Documenting computer evidence. Chapter 9 Forensic and Investigative Accounting 18 Evidence Management Do not mark, staple, or otherwise alter any Do documents or other evidence that might find its way into court. its Record how the documents were obtained Record and who has handled it (chain of custody). and Use see-through holders to avoid putting Use fingerprints on documents. fingerprints (continued on next slide) Chapter 9 Forensic and Investigative Accounting 19 Evidence Management Store original documents and working Store papers in fireproof safes or locked cabinets. papers Protect material stored on a computer with a Protect password. password. Make backup copies on a regular basis and Make store in a separate location. store Copy, inventory, and index evidence so that Copy, it can be readily found when needed. it Chapter 9 Forensic and Investigative Accounting 20 Questioned Documents Invoices and other documents may be fake or altered when: Font sizes or types are not consistent. No address is shown for the vendor or customer; No this situation is especially suspicious if a vendor has not identified an address to which a check can be sent. be The document has no identifying numbers such as The invoice number, purchase order number, or customer number. customer (continued on next slide) Chapter 9 Forensic and Investigative Accounting 21 Questioned Documents All invoice numbers on invoices from All vendors are numbered sequentially, with no numbers skipped. numbers No tax is shown for taxable items. No shipping or freight cost is shown for No items that would have been shipped at the purchaser’s expense. purchaser’s Little or no detail is provided on the invoice Little or document. or Chapter 9 Forensic and Investigative Accounting 22 ...
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This note was uploaded on 03/23/2010 for the course ACC_ 01 taught by Professor Zeegal during the Fall '10 term at Missouri State University-Springfield.

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