CFE Legal Frameworks & Regulatory Standards 5 — Questions and Answers
Question 1: Which legal concept allows a court to draw an adverse inference against a party that destroys evidence after a duty to preserve has arisen?
- Res ipsa loquitur
- Spoliation inference (Correct answer)
- Collateral source rule
- Judicial estoppel
Correct answer: Spoliation inference
The spoliation inference permits a fact-finder to presume that destroyed evidence would have been unfavorable to the party responsible for its destruction.
Question 2: Under the Foreign Corrupt Practices Act (FCPA), anti-bribery provisions prohibit payments to foreign officials to obtain or retain business. Which defense is explicitly recognized by the FCPA?
- De minimis payment defense
- Arm's-length transaction defense
- Affirmative defense for payments that are lawful under written local law (Correct answer)
- Good faith belief defense
Correct answer: Affirmative defense for payments that are lawful under written local law
The FCPA provides an affirmative defense when a payment was lawful under the written laws and regulations of the foreign official's country.
Question 3: A forensic examiner is subpoenaed to produce a forensic report they prepared for defense counsel. The attorney asserts privilege. Which scenario would most likely OVERCOME the work product protection?
- The opposing party demonstrates substantial need and inability to obtain equivalent information by other means (Correct answer)
- The report was emailed to a third party
- The case has been settled
- The examiner is no longer employed by the firm
Correct answer: The opposing party demonstrates substantial need and inability to obtain equivalent information by other means
Ordinary work product protection can be overcome upon a showing of substantial need and undue hardship in obtaining the equivalent materials by other means.
Question 4: The Stored Communications Act (SCA) distinguishes between an 'electronic communication service' (ECS) and a 'remote computing service' (RCS). Why does this distinction matter to forensic examiners?
- Only ECS providers are required to respond to subpoenas
- Different legal process requirements apply to compel disclosure from ECS versus RCS providers (Correct answer)
- RCS providers are exempt from all federal privacy laws
- ECS providers store data permanently while RCS providers delete data after 180 days
Correct answer: Different legal process requirements apply to compel disclosure from ECS versus RCS providers
The SCA imposes different legal process thresholds (warrant vs. court order vs. subpoena) depending on whether the provider is classified as an ECS or RCS and the age of stored content.
Question 5: When testifying as an expert witness, a forensic examiner should respond to a hypothetical question by:
- Refusing to answer because the question is not based on actual case facts
- Answering based on the assumed facts stated in the hypothetical, clearly noting they are assumed (Correct answer)
- Requesting permission from the judge before answering
- Deferring to fact witnesses who have direct knowledge
Correct answer: Answering based on the assumed facts stated in the hypothetical, clearly noting they are assumed
Experts may properly answer hypothetical questions by applying their expertise to the assumed facts stated in the question, so long as they clarify those facts are assumed.
Question 6: Under the Privacy Act of 1974, federal agencies are prohibited from disclosing records about individuals without prior written consent EXCEPT in which circumstance?
- When the agency head personally approves the disclosure
- When the disclosure falls within one of the 12 statutory exceptions, such as routine use or law enforcement (Correct answer)
- When the individual has been criminally indicted
- When the records are more than 7 years old
Correct answer: When the disclosure falls within one of the 12 statutory exceptions, such as routine use or law enforcement
The Privacy Act prohibits non-consensual disclosure but provides 12 enumerated exceptions including routine use, statistical research, law enforcement, and Congressional requests.
Question 7: A forensic examiner is retained by an insurance company to investigate a potential fraud claim. The insured invokes the Fifth Amendment and refuses to cooperate. In this civil proceeding, the court may:
- Compel testimony by granting use immunity
- Draw an adverse inference from the refusal to testify in the civil case (Correct answer)
- Impose criminal contempt sanctions immediately
- Dismiss the civil claim automatically
Correct answer: Draw an adverse inference from the refusal to testify in the civil case
In civil proceedings, a court or jury may draw an adverse inference from a party's invocation of the Fifth Amendment, unlike in criminal proceedings where no adverse inference is permitted.
CFE Legal Frameworks & Regulatory Standards 5
Which legal concept allows a court to draw an adverse inference against a party that destroys evidence after a duty to preserve has arisen?