Bahamas 'long way' behind over expert witnesses rules
The Tribune–The head of the Bahamas’ Association of Certified Fraud Examiners (ACFE) chapter yesterday said he hopes the introduction of updated rules of evidence for civil litigation in the Bahamas will lead to “more business and activity” for fraud examiners.
Edmund Rahming said the organisation, which was formed in January 2011 to serve the interests of fraud examiners and the wider community through the promotion of fraud awareness and protection, expects the updated rules will also “improve the recognition of the role” of fraud examiners as expert witnesses in matters before the courts.
His comments came as attorney and Rules Committee member, Milton Evans, highlighted proposed updates to rules of evidence for civil litigation, which will impact fraud examiners. He was speaking at the first luncheon seminar to be held by the ACFE since its inception in January 2011.
Mr Evans noted that the key thrust of the updates is to increase the expectation of independent and unbiased evidence being submitted by expert witnesses.
Rules
“The rules say that it is the duty of an expert witness to help the court impartially on matters relevant to the expert’s expertise. That overrides any obligation to the person by whom the expert is instructed or paid. If the court is going to respect you as an expert, the court has to know they can rely on you. You don’t want to be seen to be a hired gun,” said Mr Evans.
He said it was by upholding this responsibility to the court, as demanded by the new rules, that expert witnesses such as fraud examiners will retain their “credibility and integrity” and that of their industry.
The attorney pointed to a stipulation under the new rules that expert witnesses should make it clear to the court if there is a possibility that “there may be more than one way to look at the facts” they present on a fraud matter, and also to communicate with the court if any evidence arises – after they have provided a certain opinion – that would cause them to change their opinion on a particular matter.
Expert witnesses are also expected to inform a client if their expertise does not cover the matter at hand. “Don’t experiment with your client. And if the client persists and asks you to proceed, you must notify the court of your level of expertise in this particular area,” said Mr Evans.
Under the proposed amendments, expert witnesses can “apply to the court for directions” if they “run into problems” coming to a conclusion on a matter.
“Whether it is additional information needed…you are able to put an application to the court to say this is the assistance that I need in order to assist you,” Mr Evans said.
Empowered
Meanwhile, expert witnesses will be further empowered to obtain a “search order” from the court that would give them access to “documents which are relevant to an action before the courts”.
This would apply, for example, in a fraud case where they might have free access to their client’s financial information, but would need to see the alleged fraudster’s documentation in order to reach a conclusion on whether the “paper trail” really implicates that individual.
Mr Evans said the rules of the Supreme Court, which apply to all expert witnesses appearing before the courts, not only fraud examiners, are generally being updated to meet international standards.
At present the Bahamas is “a long way behind” jurisdictions like the UK and some if its counterparts in the region, such as Jamaica and Barbados, who have already updated their rules in this area.
Once the rules are implemented, the Bahamas will be broadly in line with such jurisdictions in this regard, he suggested.
Mr Rahming said the ACFE supports the proposed update to the rules, on which Mr Evans noted input is still being solicited.
“Based on what Mr Evans had to say, we support the changes. They will definitely change the way we do business. It will improve the system, it will improve the recognition of our role and what the expectations will be from the attorneys on both sides, how we will be a part of the process,” Mr Rahming said.
“Hopefully, it will mean more activity and more business for experts, whether that’s on a damages quantification, an expert witness for a fraud or forensic matter, a divorce matter where you’re looking for assets and need an expert. It will improve the way we are dealt with and, hopefully, it will increase the amount of business that we’ll have as it relates to civil litigation.”
Mr Rahming said that while it was already considered standard in the industry for fraud examiners to provide independent and unbiased advice to the court when called upon, with this being “the standard worldwide”, the new rules will “make it explicit so everyone knows about it”.