Evaluation and use of forensic accounting report
As a result of studying this chapter, the student must:
• the circumstances of the assessment of the conclusion of the accountant expert;
• tasks and forms of expert preventive activities;
• types of preventive measures carried out by an accountant expert
• Criminal procedural regulation of interrogation of the accountant expert;
be able to
• evaluate the opinion of an accountant expert in terms of relevance, admissibility, residuality;
• determine the need for interrogation of an accountant expert;
• methods of procedural assessment of the accountant's expert opinion;
• The skills of operating the basic concepts used in the conclusion of an accountant expert.
Evaluation of the conclusion of an expert accountant by the inquirer, investigator, court
Evaluation of the conclusion of the accountant expert is an analytical procedure carried out by the investigator, investigator, court, having legal consequences of judgments about its significance and role for determining the required legal facts.
The assessment is carried out by these entities on the basis of a comprehensive, complete and objective examination of all the circumstances of the case together with other sources of evidence.
Having received the expert accountant's report, the investigator, the investigator, the judge carefully evaluate it taking into account the following circumstances:
1) subjective qualities of the accountant expert;
2) sufficiency of the scientific and methodological base;
3) communication of the conclusion with other sources of evidence;
4) the nature of presentation and style;
5) procedural criteria.
1. The subjective qualities of the accountant expert include the theoretical preparation necessary for the production of expertise, work experience in the expert field, the availability of higher education and attestation and other personal qualities. If the examination is rejected on the grounds of insufficient qualification, a new examination is appointed.
To properly assess the qualifications of the inquirer, investigator, court pay attention to the following factors:
- the use of effective research methods;
- the correctness and objectivity of the expert's assessment of the results of the study;
- completeness of selection and use by an expert in the conclusion of regulatory legal acts and literary sources, etc.
2. The sufficiency of the scientific and methodological base is connected with the research work of the accountant expert and drawing up a conclusion. When assessing scientific and methodological factors, the following is taken into account:
a) the use of the expert regulatory legal acts governing accounting;
6) the correctness of the chosen expert methodology in the study of business transactions;
c) the absence of internal contradictions, gaps in the conclusion;
d) compliance of the conclusion with the issues resolved for resolution;
e) the categorical conclusion (the answers to questions must be specific, not allowing presumptive, mutually exclusive interpretations);
e) the consistency of the conclusion;
g) reasonableness of the report of the head of the expert institution on the drawbacks of the conclusion.
3. The conclusion must be connected with other sources of evidence (interrogation protocols, confrontations, accounting documents, etc.). It should be stated objectively on the basis of special accounting knowledge and concern the investigation of all sources of evidence available in the case.
4. The conclusion is presented in an accessible language, it should not contain editorial inaccuracies, incomplete answers to questions, arithmetical errors and typos. The findings of the study are set out specifically in an accessible form for all participants of the proceedings.
When assessing the conclusion, expert errors can be identified that can not be corrected by subsequent interrogation of the expert, as well as errors that affect the expert's conclusions and cast doubt on the facts presented in the conclusion. All errors are subdivided into procedural, epistemological and operational (activity).
The procedural mistakes consist in the violation of the procedural regime and the procedure for expert research (the expert's exit beyond his competence, the invasion of the legal sphere, the expression of the expert initiative in forms not provided for by law, the justification of the findings of the conclusion, not by the materials of the investigation, but by case materials, etc. .).
Epistemological errors are associated with the complexity of expert knowledge, and operational errors - with the complexity of the applied expert procedures and research objects, for example errors in calculating material damage.
If there are difficulties in establishing errors in the content side of the expert opinion, the investigator, the investigator, or the court may invite a specialist with special knowledge in the field of accounting. Some authors suggest an alternative solution to this problem - to introduce into the criminal process the "competing" expertise, which will provide adversarial expertise.
5. Procedural evaluation criteria are based on compliance with procedural rules in the production of expertise, rules for assessing evidence, the availability of other evidence in the case on which the conclusion is justified.
The conclusion presented to the investigator, investigator, judge is an independent source of evidence. In it, the expert-accountant expresses only his own opinion on the facts that matter to the case. However, every proof, including the conclusion, is subject to analysis, as well as a full, comprehensive and objective assessment by the law enforcement officer.
The expert opinion does not have advantages over other sources of evidence, but it has a certain specificity, because it is a conclusion based on the conducted research using specialized knowledge. In practice, there is often excessive confidence and overestimation of its evidentiary value, which can lead to adoption of unjustified legally significant decisions. For example, the expert's conclusion is based on incorrect initial data or non-long-term objects, which led to a distortion of the results of the study.
In this regard, the expert's conclusion must be subjected to thorough, comprehensive verification and critical evaluation by the bodies conducting the investigation and the trial of the case.
Each proof, including the expert's opinion, is subject to a criminal procedure assessment in terms of: a) relativity; admissibility; c) All collected evidence in aggregate is subject to assessment in terms of their sufficiency for the resolution of the criminal case (Part 1, Article 88 of the Code of Criminal Procedure).
According to the criminal procedural legislation (Article 17 of the Code of Criminal Procedure), the judge, jurors, prosecutor, investigator, investigator assess the evidence by their inner conviction. The expert's conclusion has no advantages over other evidence and must be assessed by the investigator and the court.
In the assessment process, the relativity of the expert's conclusion as proof is primarily determined. The proof is relevant if it contains information about any facts, circumstances relevant to the case, or other circumstances that have the value of evidentiary facts, i.e. facts used as arguments, logical premises when establishing any elements of proof.
The relativity of the expert's conclusion is expressed in the confirmation of the presence or absence of the connection of the potential evidence with the facts established in the case.
In determining the relevance (determining the property of evidence), the object of the appraisal activity of the subject of proof is the conclusions, since it is in this part of the conclusion that information on the facts sought is contained. Relativity is expressed in confirming the presence or absence of a link between potential evidence and facts established in the case.
Relativity can be direct or indirect. The direct relevance of inferences holds if the fact that is being established has a direct bearing on the subject of proof.
The indirect relevance of the conclusion, formulated on the initiative of the expert, takes place when it is formulated as a response to the additional question necessary for solving the main issue. Such a conclusion will be evaluated by the subject of proof in conjunction with the conclusion on the main issue.
Admissibility of the expert's conclusion means compliance with the work with evidence of formal requirements provided for by law (articles 201, 204 of the Code of Criminal Procedure, articles 23, 25 of Law No. 73). Recognized as inadmissible, evidence is excluded from the totality of evidence, regardless of its epistemological, cognitive value.
One of the essential points in assessing the admissibility is the establishment of the competence limits of each of the experts participating in the complex examination and their expert specialty. Assessing the admissibility of the expert's conclusion, the subject of evidence should pay attention to the mandatory indication in the opening part of the conclusion that the experts have the relevant specialties and the right to produce forensic accounting expertise. When assessing the conclusion by the investigator (court), attention is drawn to the correspondence of the conclusion to the complex problem posed.
Admissibility as a property of proof is inseparable from its property - certainty. A formal assessment of reliability implies a verification of the sufficiency of the material presented for research, the initial data, the correspondence of the number of conclusions to the questions posed, and so on. The substantive side of reliability includes: the competence of the expert; scientific validity; completeness, comprehensiveness and objectivity of research; correctness of the conclusions drawn; logical reasoning of the expert's conclusions; the conformity of the findings to the interim studies and the whole study as a whole, their consistency.
Evaluation of the reliability of the expert conclusion is of a certain complexity, as the assessment is subject not only to the formal side, but also the content of the conclusion, which, in turn, is associated with the competence of the investigator, the court. That is why the subject of proof must know on what basis an expert study is based, what are the criteria for assessing the conclusion and the reliability of the final conclusions.
In assessing reliability, the adequacy of the materials submitted to the accounting expert (accounting documents, accounting registers, case materials, etc.) is taken into account. When assessing the conclusion, the subject of evidence draws attention to whether all the necessary materials were at the disposal of experts; whether the examination was carried out in an expert institution or outside it; whether the request for additional materials was granted and how their provision (failure to provide) affected the expert decision.
In assessing reliability, the investigator, the investigator (judge) must take into account the experts' adherence to the principles of objectivity, comprehensiveness and completeness of the investigation (Article 4 of Law No. 73).
After a positive decision on the issue of the relevance, admissibility and reliability of the expert opinion, its sufficiency is established from the position of the case resolution.
Evaluation of the sufficiency of the expert accountant's conclusion should be considered with reference to either one proof or to their totality. In the first case, we are talking about the sufficiency of the conclusion for proving the fact for which establishment a specific examination was assigned.
In the second case, the expert's opinion is evaluated in the system of other sources of evidence.
After a thorough assessment of the conclusion of a forensic accountant, the investigator, the judge has the right to take one of the following decisions:
- to recognize the conclusion as benign;
- draw the attention of the expert to the detected inaccuracies, typos, countable errors (these shortcomings can be eliminated either by the expert himself (with his consent) or by his interrogation;
- assign additional or re-examination;
- do not agree with the conclusion of the expert, motivating his decision in the indictment.
The disagreement of the investigator, the investigator, the court with the conclusion of the accountant expert is reflected in the indictment, the decision to terminate the case, or when appointing an additional or re-examination. At the same time, the motives for not recognizing the conclusion as a source of evidence and an analysis with a statement of justified conclusions about its shortcomings are given.
At the request of the parties and on their own initiative, the court is entitled to summon for questioning an expert who gave an opinion during the preliminary investigation (part 1, article 282 of the Code of Criminal Procedure).
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