Federal indictments of corporate executives and professionals are structured around business transactions and the weaving of a conspiracy, which is then used to ensnare other executives and professionals. The indictment is the vehicle used by the government to bring charges against the defendant. The allegations are the prosecutor’s theory of the crime presented to the Grand Jury. The exceptional complexity of the issues is generally downplayed making it easier to propel the charges through a Grand Jury of lay people. However, the indictment is also used by the C.P.A. and the attorney to set up a Theory of Defense for presentation to a jury at trial. If the defense team can prepare a coherent, plausible theory of defense, which negates the indictment, and presents it in an orderly sequenced manner to a jury during the trial, a strong position can be gained which may possibly lead to an acquittal.

The utilization of a C.P.A. experienced in trial preparation can provide the attorney with an excellent tool with which he can structure and develop the case. This experienced C.P.A. with his organized presentation of the evidence, renders valuable insight in the evolution of the case as it moves toward trial . The accountant’s specific training in analyzing and explaining transactions to the public and other recipients provides him with the experience of reducing complex allegations to simplified coherent explanations for the lay person. The presentation of the Theory of Defense at the level of jury comprehension is imperative.

White collar crime involves deception to convert assets through fraud. The government, financial institutions and individuals may all be victims of this deception. Special IRS Agents, FBI agents, and Justice Department attorneys are a world away from the multitude of transactions that make up everyday business. However, the C.P.A. is in the business arena from the day he begins practicing. Businesses and the transactions that are their bedrock are an everyday occurrence for the experienced C.P.A. His understanding of these transactions is at the complete opposite end of the spectrum from the government’s business knowledge. The Special Agent of the IRS or the FBI develops a theory of the case with a limited understanding, in respect to the transaction. Their removal from actual events allows them only to hypothesize what has occurred. With due process and the collective mind of the jury, the government’s burden is far greater to prove up the allegations in the indictment at trial.

On the other hand, the reality of the transactions depicted by the government, is known by the defendant, who was there in real time when the alleged criminal acts were committed. This knowledge and the sophistication of the attorney and the C.P.A. can provide the presentation of evidence to create the necessary reasonable doubt to the jury for an acquittal.

It is the vast experience of working many years with the documents of a divergent clientel, that enables the C.P.A. to organize the massive documents, subpoenaed by the government from the defendant. The C.P.A. in order to begin his analysis on how to negate the allegations of the indictment and formulate a Theory of Defense has to organize and sequence all these documents. From this preparation, the C.P.A. using the analytical skills and an instinctual “gut” feeling derived from years of work experience with a variety of clients and their myriad business transactions can structure a defense that brings the relevant issues to the attorney’s attention.

The indictment itself can be employed as a matrix to build the defense through witnesses, and to supply evidence through exhibits and interviews, which can also narrow the testimony of witnesses. When building a methodical defense, anticipated weaknesses are revealed, thus allowing anticipated reactions to be smoothly achieved.

Transactions from alleged criminal acts in the indictment can be analyzed by the accountant, and strategies can be developed for the defense to be incorporated into the attorney’s opening statement, closing statement and the sequence of presentation during the trial. Jury comprehension of the alleged acts is usually drawn from demonstrative evidence which appeals to the jurors’ logic and instills them with confidence that they are reaching the correct conclusions. The C.P.A. will testify as an expert witness which allows evidence to be presented through his testimony. When all elements of the defense preparation are placed into a trial memorandum, the valuable components of the defense theory can be orchestrated and forcefully presented by the attorney.

It cannot be emphasized enough how significant the contribution of the accountant is in his analysis of government witnesses and his effectiveness in pointing out their weaknesses for cross examination. The development of cross examination questions for prosecution witnesses can in many cases be used to impeach the witness and rebutt the prosecution’s theory of the case.

By approaching the development of a Theory of Defense utilizing a C.P.A., the preparation for trial can be more efficient and cost effective. Thus the attorney can employ his time more productively and develop a higher yield from the case. Indeed, the client is better served by working with both the C.P.A. and the attorney while preparing for trial. The exposure of ideas and their different interpretation by the two professionals will enable a more insightful structuring of a defense.

The C.P.A. is exceedingly important in evaluating government memorandum of interviews and affidavits which can tie back to the negation of the indictment. These documents represent the government’s theories which are usually based on square pegs fitting into round holes. They can be and are distorted many times by Special Agents and prosecutors. An experienced IRS Agent or others can have an agenda unbeknown to the person being interviewed, which subtly manipulates him/her into adopting the IRS position. The accountant and the attorney who pick up on the government’s positioning realize that if it is important enough to distort, then it will probably provide insight into the government proving up its case.

A reminder of how important the C.P.A. is to a criminal white collar case is the following professional services he can and should provide to law firms from pre -trial through the trial.

© 2005 William H. Frank C.P.A.