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The Fraud Trial

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The Fraud Trial THE FRAUD TRIAL GLOBAL HeAdquArters • tHe GreGOr BuiLdinG 716 West Ave • Austin, tX 78701-2727 • usA The Law Against Fraud II. THE LAW AGAINST FRAUD Fraud is distinguished from larceny or theft. The elements of criminal and civil fraud hinge on willful acts of misrepresentation. Selected criminal and civil laws are defined. Background and Definitions of Fraud Early references to fraud in English common law—the legal system on which the U.S. system is based— define it as cheating or deceit. A common-law cheat was someone who, by false pretenses, false tokens, or intentionally false representations, induced someone else to part with their property or personal rights. Common-law cheating or fraud was considered both a crime (a misdemeanor, as opposed to larceny, which was a felony) and grounds for civil action. Fraud, then, has a historical foothold in English civil law as well as in criminal law. This dual status is retained in modern U.S. courts. For many frauds, criminal and civil actions are both pursued in relation to the same act: Prosecutors may file a criminal complaint and the damaged party can file a civil action for recovery of damages or property. Similarly, tax evasion can be treated as a criminal and civil fraud. In many states, fraud is now considered larceny by trick or false pretenses. Larceny refers to what is more widely called theft, and it is defined as the wrongful taking of money or property of another with the intent to convert the money or property or to deprive the owner of its possession and use. Both fraud and larceny are forms of theft. If the taking is by stealth or force, it is larceny. If the taking is by guile or deception, false representation, or concealment of crucial information, the act is fraud, false pretenses, or larceny by trick. For example, an employee in the accounting department who steals $40,000 worth of merchandise from the organization’s warehouse in the middle of the night has committed larceny; the employee did not commit fraud because their actions involved stealth, not guile or deception, false representation, or concealment of crucial information. The deception element for a fraud action can be designed to cause others to act or be part of concealing one’s own actions. Although larceny by trick and false pretenses both involve deception, there is one small difference between the two. With false pretenses, the defendant obtains title, whereas larceny by trick typically results in the defendant obtaining possession. For example, a “buyer” obtaining title to a vehicle by misrepresenting to the owner that they deposited money into an account constitutes larceny by false pretenses; someone posing as an owner of a vehicle to trick a valet driver into transferring possession constitutes larceny by trick. In the larceny by trick example, no title of possession was transferred. Embezzlement is a particular kind of fraud that is distinguished from larceny; it is committed not by deception, but by a breaching of one’s fiduciary responsibility. The difference centers on the legal custody of the article stolen. Larcenists take something from its rightful owner without ever having had The Fraud Trial 7 The Law Against Fraud legal custody of it themselves; embezzlers, conversely, take something in which they have legal custody. Embezzlement exceeds the originally authorized custody agreement. In practice, fraud embraces all the miscellaneous means that individuals employ to gain an advantage over another by false suggestion or suppression of the truth. According to Black’s Law Dictionary, the act of fraud includes surprise, trick, cunning, and a range of unfair ways by which people are cheated. Elements of Criminal and Civil Fraud Fraud as a human activity can be difficult to understand, but the legal elements—the components of a legal offense that specify what must be shown to prove the claim—of a fraud are more readily defined. Generally stated, the legal elements of fraud, also known as misrepresentation fraud or fraudulent misrepresentation, include: • There is a misrepresentation of a material fact. • The misrepresentation was made with knowledge of its falsity. • The misrepresentation was made with intent to induce the victim to rely on the misrepresentation. • The victim relied upon the misrepresentation. • The victim suffered damages as a result of the reliance. The key distinction between fraud and larceny or any other type of theft hinges on the first element: the perpetrator acts by misrepresentation. Fraud may be prosecuted criminally, civilly, or both, in sequence or simultaneously. Civil Fraud Actions The specific elements of civil fraud vary somewhat according to the jurisdiction, but the elements normally include: • The defendant has made a representation in regard to a material fact. • The representation was false. • The defendant knew the representation was false. • The representation was intended to provoke an action by the plaintiff. • The plaintiff suffered damage as a result. • In acting, the plaintiff reasonably assumed the representation was true. Fraud claims can arise under state or federal law, and they can be brought in state or federal court. In federal civil actions, the rules of the legal system are governed by the Federal Rules of Civil Procedure. Each state (and some counties) publishes its rules of civil procedure. Although the rules of civil procedure in most states follow the general outline of the federal rules, procedural rules can be vastly different. 8 The Fraud Trial The Law Against Fraud Under the Federal Rules of Civil Procedure, fraud claims have to meet tougher requirements than most other civil actions. To bring a claim for most civil actions, plaintiffs can state their claims in general terms without alleging detailed facts to support each claim. For example, a plaintiff alleging negligence can file a claim by simply making the accusation (e.g., the defendant’s inattentive driving caused an accident) without including any details or supporting evidence. But the Federal Rules of Civil Procedure Rule 9(b) states that to bring a claim for fraud, parties must plead the facts of the alleged fraud with particularity. In other words, a fraud plaintiff must make the plea in detail, specifying what misrepresentations were made, to whom, how they were false, why the plaintiff relied on them, etc. The 9(b) requirement sets up a catch for fraud plaintiffs. For example, suppose that the officers of Lapis Bank are convinced that a member of the bank’s loan committee, Mr. Bartleby, has been arranging loans as part of a kickback fraud, but they do not have the documentation necessary to make a claim with particularity because the documents are in Bartleby’s control. To obtain the necessary documents, they need access to the various legal mechanisms that are available only when a civil action has been commenced. Judges often grant leeway in civil procedure, allowing a complaint to be brought pending the results of discovery. There may have to be a hearing after the original filing and some agreement to amend the complaint after discovery has produced the information necessary to state the claim with the required particularity. The 9(b) requirement shows why the initial investigation by a fraud examiner is important if the case proceeds to trial. If the fraud examiner has done their job properly, the attorney should have all the information he needs to file a proper complaint. Again, civil actions can be filed by plaintiffs in state or federal courts, but most fraud suits, usually styled as misrepresentation claims, are filed in state courts. Suits involving parties from different states and involving more than $75,000 in controversy (known as diversity cases), or actions brought on the basis of federal statutes, can be brought in federal court. Federal court is generally preferred by plaintiffs in larger cases because it provides better access to witnesses and documents located in different states. Criminal Fraud Charges Although fraud may be challenged in a criminal or civil action, there are differences between criminal and civil actions for fraud. Normally, a major distinction is the question of criminal intent. Most crimes require proof that the defendant acted with a culpable mental state. That is, prosecutors generally must offer proof about what a defendant was thinking and intended when the crime was committed. Generally, to establish criminal liability, prosecutors must show that a criminal defendant knowingly and willfully intended to commit the act in question. In contrast, establishing liability for most civil claims does not require proof of the defendant’s mental state. In a pure fraud case, however, this distinction does not hold. That is, establishing civil liability for fraud, like establishing criminal liability, requires proof of the defendant’s mental state. This is because The Fraud Trial 9 The Law Against Fraud one of the elements of civil fraud requires that the defendant knew that the statement was false and intended the victim to rely upon it. The same is true for other asset misappropriation cases. For instance, in the case in which Hunter Pascal is accused of embezzling the investment funds of a private school, to establish that Pascal is guilty of embezzlement, the complaining party must show that Pascal meant to siphon off the money from the school’s investment fund and that he did not merely misapply or mismanage the funds. Under such circumstances, the complaining party might demonstrate Pascal’s intent by showing the different ways he circumvented financial controls to take possession of the funds. Intent can make establishing a defendant’s guilt difficult, but prosecutors in criminal cases do have some leeway. They do not have to show that the fraud was successful or caused damages to another party, only that it was designed and initiated to defraud someone.
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