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Stan Twardy and Daniel Wenner Review Latest Second Circuit Ruling on Lay/Fact Testimony

Publisher: American Bar Association's Criminal Litigation Committee Newsletter
December 18, 2013

Partner Stan Twardy and counsel Daniel Wenner co-authored an article discussing the likelihood that CFOs or auditors may be called as "star witnesses" in a criminal-fraud trial after the decision by the U.S. Court of Appeals for the Second Circuit in United States v. Cuti, 720 F.3d 453 (2d Cir. 2013). The authors noted that the ruling essentially will allow prosecutors to ask accountants who had participated in preparing or auditing financials "what-if-you-had-known" questions. "Accountants and other professionals will be turned from simple fact witnesses--discussing the mundane, 'who, what, when, where, and how'--into pseudo-experts," they noted. But the recent case law development, they said, might also work for the defense counsel. "[D]efense counsel can use the government's witnesses to provide opinion testimony on their client's behalf, by using 'what if' questions that show the defendant's lack of scienter," they concluded.

The article was published in the American Bar Association's Criminal Litigation Committee Fall 2013 Newsletter.


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