Law Times

Law Times • JuLy 13/20, 2009 BRIEF: FORENSIC/PRIVATE INVESTIGATORS PAGE 15 Mustachioed Ferrari-driving beach bums need not apply BY KELLY HARRIS Law Times Order, concealing a crime when forensic specialists are around isn't an easy prospect. Th e teams on television always I seem to go up against the best of hardened criminals; masters of their trade. In real life fraudsters often lack the sophistication to avoid penalty, especially if you have someone who knows where to look for evidence of the crime. "We've had cases where we have taken a computer that has been burned in a fi re and we could download the hard drive," says Chris Giffi n president of Giffi n Koerth Forensic Engi- neering and Accounting. Using what he describes as one of the most sophisticated comput- er forensic labs in all of Canada, Giffi n says in this case his team was able to duplicate the dam- aged hard drive. Th ey then made a mirror image of the storage unit and scanned everything on it. It detailed Google searches, e-mails both current and deleted, and every web site the computer ever visited no matter how many times you clear your cache memory. Still, the options for trying to hide information are endless. Never mind the desktop com- puter, massive storage devices can be found on laptops, hand- held devices like BlackBerrys, and even cellphones. In the case of attempted fraud where the charred remnants of the computer were retrieved, the history of visited web sites, and e-mail trails proved to be the un- doing of the master criminal. "An example of where it helped on this fi re is we found that somebody had Googled just days prior to the fi re, something like how to start a fi re and e- mailed to the eff ect of I'm about to start the fi re and I'll be home in 20 minutes," Giffi n says. "It is amazing what you can get off people's computers, we've found actually that just the threat f television has taught us anything through shows like CSI: Miami and Law & of doing computer fo- rensics on a number of claims has resulted in the claim being withdrawn. Because people are very afraid of what we may be able to fi nd on their com- puter hard drives." Aside from fraud in- vestigations, computer forensics can also in- clude electronic data recovery and extraction, and intellectual property work. In the case of in- tellectual property, theft investigators seek out who stole the property, how they did it, where it went once it was done, and who else partici- pated; all questions that must be answered before seeking remedy in such a case. Adding to the computer foren- sics, Giffi n Koerth includes a fo- rensic accounting team. Th is idea is often investigations that involve the perpetration of a fraud. For example, a fl ood or fi re at a store or warehouse supposedly destroys merchandise. Th e forensic team could go into the fi les and fi nd out whether or not the unfortunate victim was overstating the value of the goods, or even the amount, lost in the event. In an insurance industry where it is estimated that 15 per cent of all premiums go to pay for fraudulent claims, disproving those claims could make a world of diff erence. "All accounting is done on the computer, of course," Giffi n says. "We can look back and see every- thing that has gone on in the past and we can see if there has been any changes made and see if there has been fraud perpetuated." While that may seem straight- forward, Giffi n says one of the greatest challenges facing his profession isn't getting the infor- mation, it's communicating it. Th e greater the complexity, the greater chance the opposing side will attack the intricacies of the case and drive up the cost of case management and resolution. Giffi n Koerth seeks to overcome MARMER PENNER INC. BUSINESS VALUATORS & LITIGATION ACCOUNTANTS BUSINESS VALUATION MATRIMONIAL & OTHER LITIGATION SUPPORT FORENSIC ACCOUNTING QUANTIFICATION OF DAMAGES SHAREHOLDER/PARTNERSHIP DISPUTES GOODWILL IMPAIRMENT TRANSFER PRICING 94 Cumberland Street, Suite 200 Toronto, Ontario M5R 1A3 Tel: (416) 961-5612 Fax: (416) 961-6158 Email our partners at: sranot@marmerpenner.com jdebresser@marmerpenner.com www.lawtimesnews.com Cox_Criminal Evidence 2010 (LT 1-4x3).indd 1 armer_LT_Feb2_09.indd 1 1/28/09 11:58:36 AM 7/8/09 2:03:22 PM Published every other year, subscribers to the 2009-2010 edition will receive a free supplement in 2010. Order your copy today! Hardbound • 724 pp. • May 2009 • Standing order $105 • P/C 0265140999 Current edition only $115 • P/C 0265010002 • ISSN 1201-253X his group has had some success at: "[I]n fact we are not ending up in court very often now because we have this reputation for telling it the way it is and having the right answer. It is settled much quicker." When seeking in- the diffi culties of communicat- ing facts derived from forensic in- vestigations in a number of ways. Visualization techniques including animation, CAD drawings, and presentation design are used to bring a focus to the facts surround- ing the case. At the end of the day the real key is having people who can communicate in a fashion that doesn't lead to confusion, especially when faced with the old guard of expert witnesses. "Forensics in Canada has been small operations where there is a few guys that will comment on just about anything," Giffi n says. "A lot of them will have historically only worked defence or plaintiff , one or the other, but not both. "It is the same in the medical fi eld. Th ere are all these very well- known defence medical doctors and there are all these very well- known plaintiff medical doctors. And you can predict what they are going to say on every fi le." Th e expert witnesses have the same things in common, Giffi n says, they are a little older, charis- matic, and passionate to the point that they "can bang their fi sts." "When they get into the courtroom with the jury they speak in common sense language so they can put forward a very compelling story that the jury understands," Giffi n says. "Th en you get this geeky PhD out of academia that has the right an- swer and loses the jury with all this gobbledygook speak that he's got that is very technical and they don't understand him. "So all the judge and jury has left with is what this hired gun says that makes sense to them that carries the day." Th e trick for the new breed of forensic investigators is to be able to bring technical expertise and have the ability to communicate at the same time. Th e ultimate goal is the information is so com- pelling that the opposing counsel doesn't bother taking the action to court and instead seek settlement. It is something Giffi n says vestigators to join the team, Giffi n, who holds a bachelor's degree in engineering from the University of Water- loo, looks for people with both people skills and book smarts. Th e desire to do investiga- tions comes naturally, he says. "Forensic engineer- ing has an investigative aspect to it," Giffi n says. "Engineers by na- ture are pretty good investigators intuitively, so we don't spend a lot of time teaching our guys how to be necessarily investigators, they get that part. . . . the biggest prob- lem is getting good communica- tors. I don't care how technically great you are, if you can't commu- nicate your fi ndings to a lawyer or an adjuster in fairly straightfor- ward language it means nothing." Other projects the team at Gif- fi n Koerth is looking at include risk management, research, and education. An example Giffi n gave was investigating the case of a house fi re. If it was a faulty toaster that caused the fi re a question of fault could be asked. Should the insurance company be solely re- sponsible for faulty appliances, or should the appliance manufacturer bear some of the burden? Further research on how to prevent simi- lar issues with an appliance in the future could also be asked. LT Cox's Criminal Evidence Handbook 2009-2010 Quick access to the rules of evidence you need, the second you need them This book codifies the whole body of criminal evidence in one convenient resource. Inside you'll find all of the cases that have shaped the law of evidence. Each point of law is summarized as a precept, followed by a list of relevant case law so you can review an entire topic in a matter of seconds. Cox's Criminal Evidence Handbook, 2009-2010 includes more than 2,500 cases and more than 2,750 precepts including many new cases and topics. New precepts include topics such as: • Criminal Profiling and Crime Scene Analysis • Negative Impact on the Justice System • In Court Behaviour and Appearances • Requirement of Contemporaneity • Dying Declarations Once Admitted – Right to Attack Declaration • Expert Evidence – False Confessions • Statements Obtained by the "Mr. Big" Strategy • Failure to Electronically Record • Weighing Inculpatory versus Exculpatory Admissions • Material Gathered during Other Investigations For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0713 H arold J. Cox, Gregory Lafontaine and Vincenzo Rondinelli

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