December 18, 2013 Articles

United States v. Cuti and Lay/Fact Witness Opinion Testimony

Second Circuit rules on "what-if-you-had-known" questions posed to accountants called as fact witnesses but not as expert witnesses.

By Stanley A. Twardy Jr. and Daniel E. Wenner

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), there is a greater likelihood that today’s chief financial officer (CFO) or auditor may be tomorrow’s star witness in a criminal-fraud trial. In Cuti, the court held that accountants who had participated in preparing or auditing financials can be asked “what-if-you-had-known” questions because such testimony was permissible fact and lay-opinion testimony.

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