Demonstrating a need for reform
8 September 1999
Ted Baskerville argues for the use of demonstrative evidence for juries in complex cases of white-collar crime. Ted Baskerville is managing director of Buchler Phillips Lindquist Avey, forensic and investigative accountants, affiliated to the Kroll O Gara Group.
As an investigative and forensic accountant, I am deeply interested in the effective prosecution of fraudsters. It is my job to provide expert analysis of how financial wrongdoings have been committed and find the evidence needed for a successful prosecution.
White-collar crime is growing so fast - there are estimates that only one in four white-collar crimes is ever detected - that the question of whether the fraudsters are winning is often raised.
In my experience, the major characteristic that criminals in white collars share with those of the streetwise variety is the conviction that they won't get caught.
The Law Commission is looking at the legal framework and its effectiveness in convicting fraudsters. This examination of the law is aimed at trying to establish whether a general offence on fraud would improve the criminal law or not.
This closer examination of the law as applicable to fraud cases is timely, as the fight against white-collar crime is getting tougher. But considering that the strength of the evidence is one of the most important ingredients necessary to prove that an accused is guilty or not, I would suggest that more thought should be given to the way the evidence in fraud cases is presented.
As it generally stands at the moment, discovery in most courts consists of the witness answering questions about the evidence.
This principle applies to all witnesses, irrespective of the evidence they give.
What is particularly important in the examination of the evidence in fraud cases is that the jury in general does not actually get to see all the evidence; in my case that means the reports put together by forensic accountants.
As an expert I put my findings in my expert's report. This report is submitted as evidence and if I am in the witness box, I will have to be able to answer questions about my report.
Thus, complicated financial evidence is called upon by cross-examination with the jury not having the full, written report in front of them.
Financial information, particularly the sort which is relevant in fraud cases, can be very complex. In order to circumvent controls, fraudsters have to be very clever at hiding their tracks. Therefore most frauds involve complex schemes where money is siphoned off and moved from bank account to bank account.
Although I have years of experience as an expert witness and know how to bring to life financial records without having to revert to jargon, I doubt whether it is really possible to follow the examination of financial evidence by just listening to a question and answer session.
In any case, evidence has to be clear and understandable.
One of the most useful ways of explaining something clearly, for instance somebody's actions or the circumstances surrounding their actions, is by way of visual illustration or demonstration on the basis of the principle that pictures speak louder than words.
Presenting evidence in a clear format with the use of visual aids and computer graphics can save a lot of time and increase comprehension. Complex financial information such as the movement of money in and out of accounts and through financial institutions around the world, for instance in situations involving money laundering, can be illustrated by pictures and graphs very effectively.
As the case for it is strong, the principle of demonstrative evidence is gaining ground in the UK, albeit slowly. Its use in court is still very rare, unlike in North America, where it is standard practice.
The main reason why there are reservations about using it in the UK is that its usefulness is not sufficiently appreciated.
But the legal community here is beginning to be actively interested in its use in non-court settings. This stems from the greater emphasis on achieving alternative dispute resolution (ADR).
Getting all the decision makers round the table in order to talk and showing them through the evidence can be enormously helpful in settlement discussions. Indeed, on its introduction to a case just prior to trial, demonstrative evidence has been known to bring about a very swift conclusion.
With the emphasis on ADR and Lord Woolf's determination to improve the efficiency of court proceedings, demonstrative evidence will need to be used more and more widely. That much is clear.
However, what is not clear is how long it will take to become established as a court routine.
Judging by the speed at which judges are becoming adept at using other innovations in court proceedings, for instance computer technology, this hopefully won't be too long.