Doc Ev and Proof

Question 1

Define Documentation

Answer 1

process of identifying, obtaining, and organizing the evidence necessary to successfully prove a criminal case.

Question 2

Define evidence and the two classifications of evidence

Answer 2

a. Evidence – means whereby a fact in question may be provided or disproved.
i. Federal Rules of Evidence determine what evidence will be admissible in federal trials. Evidence MAY be admissible in court under the Federal Rules of Evidence if it tends to reasonably and substantially prove a fact at issue.
b. Proof – End Result or Effect of evidence.

DIRECT EVIDENCE AND CIRCUMSTANTIAL EVIDENCE

Question 3

Direct Evidence

Answer 3

proves the existence of the principal act or allegation without any inference or presumption
1. Evidence is direct when the facts in dispute are sworn to by those who have actual knowledge by means of their senses
2. Example – in specific item cases, the special agent proves the existence of the ultimate fact (unreported income) through the use of direct evidence (i.e. cancelled checks, other documents representing income) with sworn testimony of third party
3. In Tax Cases, the specific item method of proof or DIRECT EVIDENCE is usually more desirable since it does not require the jury to draw a conclusion

Question 4

CIRCUMSTANTIAL EVIDENCE

Answer 4

proves the existence of the principal fact or allegation by inference.
1. Bank deposits, net worth, and expenditures method of proving income use circumstantial evidence to prove the principal fact (unreported income) by inference
2. It involves proving several material facts, which when considered in their relationship to each other, tend to establish the existence of the principal fact or allegation.
3. Circumstantial evidence is generally the ONLY type of evidence available to prove the subject’s true intentions (willfulness)

Question 5

T/F Direct evidence is better than circumstantial

Answer 5

Judge will normally instruct a jury that, in the eyes of the law, direct and circumstantial evidence should be judged equally.

1. Many people prefer to use direct evidence rather than circumstantial evidence since it more easily proves a fact.
2. Circumstantial evidence is sometimes more complicated because it requires the jury to use inferences to reach a conclusion.

Question 6

Define Admissibility

Answer 6

Admissibility – quality that makes evidence acceptable in court. In a criminal trial, the judge determines whether offered evidence is admissible. To be admissible, evidence must be relevant and competent.

Question 7

Define Relevancy

Answer 7

i. Relevancy – concept that a fact offered in evidence relates in some logical way to the main fact
1. Need NOT bear on the principal fact - It is sufficient if it constitutes one link in a chain of evidence or relates to facts which would constitute circumstantial evidence that a fact at issue did or did not exist
a. One aspect of relevancy relates to whether a witness’ testimony and the documents he or she introduces into evidence relates to your subject
b. Other identifying characterizes, which make them uniquely relevant may be contained on the document – most frequently is the defendant’s signature or handwriting

Question 8

Define Competency

Answer 8

as it relates to evidence, means that the evidence is legally admissible. To be competent, it must be:
1. Legally obtained
2. Fall within the Federal Rules of Evidence (hearsay and best evidence rules)

Question 9

Define Hearsay

Answer 9

statement a witness has heard someone else say rather than what he or she has actually seen or experienced. Statement by other than one made by the declarant when testifying at trial
i. Hearsay statements do not afford the defendant the opportunity to do the following:
1. Observe the demeanor of the person with personal knowledge
2. Examine the person with the personal knowledge under oath
3. Cross-examine the person with the personal knowledge in court

iii. Must always be prepared to produce a qualified witness at trial if the defense does not stipulate to the items summarized on the government’s schedules

Question 10

Greenberg vs US

Answer 10

Greenberg v United States – government sought to prove the purpose of the subject’s checks through the conclusive statement of the special agent (instead of payee or other third party)

Question 11

Define Admission

Answer 11

any statement by a subject that is inconsistent with the subject’s position at trial, regardless of when the statement was made.
1. May be Oral, written, or inferred from the subject’s conduct
2. Admission is not hearsay.
3. CORROBORATION Requirements
a. Admissions made by subject PRIOR TO or DURING the commission of the offense do not need to be corroborated
i. Most frequently encountered admissions that do not need corroboration are those contained on tax returns
b. Corroboration is required for any admission AFTER the offense.
c. Corroboration requirements is not contained in the rules of evidence, but rather through various court decisions

Question 12

Define confession

Answer 12

narrow form of admission. Statement of a person that he or she is guilty of a crime. Can be oral or written
a. Corroborate any confession by independent evidence before it is admitted
b. Confessions in tax/financial crimes are rare because these crimes are premeditated crimes of greed versus crimes of passion where confessions are more common

Question 13

Exceptions to the hearsay rule

Answer 13

Rule 803 – Availability of Declarant Is Immaterial. Declarant can be available, but it’s not necessary for the declarant to testify
a. Rule 803(5) Recorded Recollection
b. Rule 803(6) Federal Shop Book Rule – MOST FREQUENT exception to the hearsay rule you will encounter. Under this rule, records made in the ordinary course of business or transmitted to the maker by someone with personal knowledge and the duty to make an accurate record are admissible – even though maker does not testify

2. Rule 804 – Witness Unavailable
3. Rule 807 – Residual Exception

Question 14

Best Evidence Rule

Answer 14

Best Evidence – rule of evidence that says when you are dealing with documentary evidence, the BEST PROOF of the contents of a document is the original document itself (Rule 1002).

Applies only to documentary evidence
Secondary evidence is inadmissable unless lack of original is explained
A duplicate will satisfy in those cases
Copies should be initialed on back along with date of comparison to the original

Question 15

Secondary Evidence

Answer 15

when original or an admissible copy of a document is not available, you can use what is known as secondary evidence to prove the contents of the original (Rule 1004)
i. Consist of TESTIMONY describing the contents of a document
ii. Notes or memoranda used to prepare the document

Question 16

Transcripts

Answer 16

manually generated summaries of the contents of documents. They are frequently encountered in criminal tax investigations that originated as referrals from the civil functions.

Question 17

Rule 901 Authentication & Identification

Answer 17

Rule 901 of the Federal Rules of Evidence states that to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
i. To get evidence admitted, you must show the witness you want to use has personal knowledge of the matter
ii. In many cases, one witness may introduce a document, and a second witness may be called to explain what the document is
iii. Documents falling within the Federal Shop Book Rule…
1. Must call as witness the custodian of documents who has knowledge relating to how entries are made in the documents
iv. Certain types of evidence are self-authenticating and do not need to be identified by a witness. Generally, self-authenticating documents are certified public documents

Question 18

STIPULATION

Answer 18

agreement between the government and the defense where both sides agree to a factual finding. Stipulations are usually in writing and are read to the jury and judge during the trial

Question 19

Chain of Custody

Answer 19

refers to the possession of evidence by the successive custodians of evidence. It is closely related to the process of authentication and identification.
i. Custodians of evidence can be called to testify that the evidence is in the same condition as when it came into their custody and was not altered while under their control
ii. Chain of custody is particularly important when dealing with:
1. Search warrant evidence
2. Tapes of undercover contacts
3. Original documents obtained from witnesses

Question 20

Seven formats used to record witness testimony

Answer 20

1. Informal Notes - Subject to inspection by the defense and court. If not relevant to investigation, not necessary to proper a more detailed record. Retained in the case file.
2. Memorandum of Interview - i. Prepared by the special agent from memory or from notes taken during the interview/conversation/contact/or activity
   ii. Should be prepared as soon as possible once the interview, conversation, contact/activity is complete
   iii. It is permissible to show witness your memorandum to refresh their recollection during trial preparation
3. Cover Letter - take the form of transmittal letter from custodian of records
   i. Satisfy witness statement needed for your investigative report and provide the name of the custodian who provided the records
   ii. Ask custodian witnesses to produce a cover letter describing the records provided
   iii. For trial, make subpoena out to “representative of XYZ Bank” and not name of original custodian as custodians frequently change
4. Affidavits - most common sworn statement
   i. Can be prepared immediately during the interview of a witness or long affidavits can be prepared in the office and taken back to the witness for signature
5. Written Statements - i. If witness has a memory loss on the stand, Rule 612 allows a witness to refresh their recollection with the statement while testifying.
   ii. Rule 80395), recorded recollection, a hearsay exception, provides for possible admittance into evidence of the content of the statement if the witness has total memory loss
   iii. Written statements should not be solicited if the witness is CRITICAL or if the testimony is Complicated
6. Question and Answer Statements – one of the best ways to interview / interrogate difficult critical and difficult witnesses. Does not need to be signed but can be. Witness may read but cannot change. Electronic recording must be consented to.
7. Grand Jury Transcripts
   testimony from a witness who appeared before the grand jury will come in the form of a grand jury transcript of their testimony
   i. If witness who testified before the grand jury changes his/her testimony or claims a lack of memory, a copy of their prior grand jury testimony can usually be admitted into evidence
   ii. Testimony of difficult or critical witnesses can be safeguarded by have those witnesses appear before the grand jury

Disposition - If a witness is likely to leave the country or die, the best way to ensure what they have to say gets to the jury is by deposition, where the defendant can cross-examine the witness. Depositions are expensive, but may save the case is if the witness is the key witness. Without a deposition, the hearsay rules will likely keep an affidavit or Q&A from the jury.

Question 21

Proof

Answer 21

logically sufficient reasons for assenting to the truth of a proposition advanced
i. “the perfection of evidence, for without evidence there is no proof, although there may be evidence which does not amount to proof”
ii. Burden of proof in civil matter – “preponderance of the evidence”
iii. Burden of proof in criminal case “beyond a reasonable doubt”
1. “wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion”
iv. Burden of proof for search warrant – “probable cause”

Question 22

Method of Proof

Answer 22

b. Method of Proof – for criminal tax investigative purposes, is a “logical presentation of financial evidence that applies principles of accounting theory and tax law in a series of ordered and sequential calculations to compute unreported income and criminal tax harm.”
i. Specific Item Method of Proof – direct
1. Documents the total income earned by the subject from each specific source during the tax periods under investigation

ii. Bank Deposits Method - circumstantial
1. Generally concerned with funds accumulated in banks, currency expenditures, and changes in cash on hand

iii. Net Worth Method – circumstantial
1. Involves measuring increases and decreases in assets and liabilities as of specific period-ending dates and personal expenditures of funds during the period

iv. Expenditures Method – circumstantial
1. Documents the subjects expenditure of funds during the specific period

Question 23

Appendix sides

Answer 23

i. LEFT SIDE – contains assertions of facts regarding the sources, amounts, and the description of the items listed
ii. RIGHT SIDE – cites the supporting evidence for the assertions of facts

Question 24

Purpose of Supporting Schedules

Answer 24

i. They can summarize evidence into a meaning, logical format so that the reader or reviewer can understand the results of the evidence
ii. They can back up and/or support computations and assertions of facts made by the special agent
iii. EXAMPLES of supporting schedule – summaries of payments received or made, reconciliations of bank accounts, deposit analyses, check spreads