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July 1994
TRIAL OF A CRIMINAL TAX CASE (1)Part I
TABLE OF CONTENTS
General Principles Scene
First Step to Trial
Fourteen Preparation Steps
Pleadings, Opening Statement, Legal and Argument Folders
Witness Folders -- Generally
Witness Folders -- Mechanics
Witness Folders -- Contents
Witness Folder -- Defendant
Witness Folder -- Agent
Documents -- Always in a Tax Case
Classification of Documents
Originals -- Definition -- Rule 1001(3)
Requirement of Original -- Rule 1002
Duplicate -- Definition -- Rule 1001(4)
Admissibility of Duplicates -- Rule 1003
Public Documents -- Rule 1005
Stipulations
Stipulations -- Conditions
Organizing Exhibits
Pre-mark Exhibits
Exhibit List -- Essential
Pre-marking Procedure
Witness Outlines
Abbreviated Sample Outline
Order of Proof
Subpoenas
Subpoenas -- Large Case
Jury
Government Right to Jury Trial
Selection of Jurors
Opening Statement -- Law
Opening Statement
Documents at Trial Generally
Voir Dire
Objections -- Rule 103
Inadmissible Evidence Suggested to Jury -- Rule 103(c)
Income Tax Returns
Income Tax Returns -- Witness
Income Tax Returns -- Certification
Authenticity Via Witness Route
Income Tax Returns -- Signature -- Trial Mileage
Business Records -- "Records of Regularly
Conducted Activity" - Rule 803(6)
Term Business -- "Calling of Every Kind" -- Rule 803(6)
"A Memorandum, Report, Record, or Data Compilation, in any Form" -- Rule 803(6)
Computer Printouts -- Rule 803(6)
Bank Microfilm Admissible
"Made at or Near the Time" -- Rule 803(6)
"Made . . . By, or From Information Transmitted By, a Person with Knowledge" -- Rule 803(6)
"Made" -- Can Adopt Record of Another
Examples -- Person With Knowledge
"If Kept in the Course of a Regularly Conducted Business Activity, and if it was the Regular Practice of that Business Activity to make the Memorandum, Report, Record, or Data Compilation" Rule 803(6)
Examples -- Regular Practice to Make Record or Report
Third Party Documents
"All as Shown by the Testimony of the Custodian or other Qualified Witness" -- Rule 803(6)
Preparer Not Necessary
"Unless the Source of Information or the Method of Circumstances or Preparation Indicate Lack of Trustworthiness" -- Rule 803(6)
Defendant's Books and Records Accountant's Workpapers
Foreign Business Records -- 18 U.S.C. § 3505
Proof of Negative -- Business Records Rule 803(7)
Proof of Negative Public Record or Entry -- Rule 803(10)
Certification Procedure -- Rule 803(10)
Witness Procedure -- Rule 803(10)
Case Examples
IRS Certificate of Assessments and Payments Rule 803(10)
Notarized Affidavit Admitted, Rule 803(10), 902(8)
Examples, Proof of Negative Criminal Tax Cases Rules 803(7), (10)
PUBLIC RECORDS AND REPORTS RECORDED DOCUMENTS Applicable Rules
Admissibility and Certification of Public -- Official Records
Public -- Recorded Records -- Meaning
Examples -- Public/Official Records
Hearsay Exception -- Admissible -- Public Records Under Rule 803(8)
General Comment -- Rule 803(8), Fed. R. Evid
Activities of Office or Agency Rule 803(8)(a)
Public Records and Reports of Foreign Governments Rule 803(a)
Matters Observed -- Duty to Report Rule 803(8)(b)
But Not Admissible in Criminal Cases Rule 803(8)(b)
Records of Non-Adversarial Matters Not Excluded -- Rule 803(8)(b)
Factual Findings of Investigation Made Pursuant to Law -- Rule 803(8)(c)
Factual Findings -- Unless Circumstances Indicate Lack of Trustworthiness -- Rule 803(8)(c)
Recorded Documents Affecting An Interest in Property -- Rule 803(14)
Statements in Documents Affecting an Interest in Property -- Rule 803(15)
Residual Hearsay Exception -- Rule 803(24)
AUTHENTICITY Requirement of Authentication or Identification Rule 901(a)
Methods of Authenticating -- Rule 901(b)
Prima Facie Showing
Chain of Custody
Authentication: Distinctive Characteristics And the Like -- Rule 901(b)(4)
Authentication -- Public Records or Reports Rule 901(b)(7)
AUTHENTICITY VIA STATUTE Authentication May Be By Statutory Methods Rule 901(b)(10)
Statutory Authentication Rule 901(b)(10)
Income Tax Returns -- Certification
Self-Authentication -- Rule 902
Ten Types of Documents Made Self Authenticating -- Rule 902
Authentication of Public Records by Certification
Distinguish: Authenticity vs. Admissibility
Self-Authenticating -- Certified Public Documents and Records -- Rule 902(1), (4)
Case Examples -- Rule 902
Self-Authenticating -- Acknowledged -- Notarized Documents Rule 902(8)
Example -- Notarized Document Admitted Rules 803(10) and 902
Self-Authenticating -- Commercial Paper and Related Documents, Rule 902(9)
General Commercial Law, Uniform Commercial Code Rule 902(9)
Pertinent Provisions of Uniform Commercial Code (UCC)-- Rule 902(9)
Self-Authenticating, Promissory Note -- Rule 902(9)
Self-Authenticating, Checks -- Rule 902(9)
Self-Authenticating, College Transcripts -- Rule 902(9)
Also Self-Authenticating Rules 902(5), (6)
Witness Needed -- Example
IRS Certificate of Assessment and Payments -- Form 4340 -- Computer Transcript -- Form 4303
MISCELLANEOUS RULES Rules of Completeness -- Rule 106
Applicable Principles -- Pre-Rules
Admissible At That Time Rule 106
Limitations of Rule
Examples -- Rule 106
Time of Admission Not Mandatory
Rule 612 -- Writing Used to Refresh Memory
Steps in Refreshing Recollection Rule 106, Fed. R. Evid
Can Use Anything To Refresh Recollection?
Mechanics -- Refreshing Recollection
Party Refreshing Recollection Can't Read Statement to Jury -- Rule 106, Fed. R. Evid
Objection To Improper Procedure Rule 103(c), Fed. R. Evid
Adverse Party Can Examine and Introduce Memory Aid -- Rule 612
Caveat -- Jury Instruction -- Rule 612
Hearsay Exception -- Past Recollection Recorded Rule 803(5)
Distinguish Refreshing Recollection and Past Recollection Recorded
Witness Forgets on Stand -- "Insuficient Recollection" -- Rule 803(5)
Memorandum Or Record Of Matter -- Rule 803(5)
Memorandum -- As Evidence -- Rule 803(5)
SUMMARIES AND SCHEDULES Summaries -- Generally
Summary Of Evidence
Summary Testimony from Expert Witness
Net Worth/Expenditure Cases
Summary Of Records Not In Evidence -- Rule 1006
Summary Of Documents Only -- Not Testimony -- Rule 1006
Admissible Evidence Only -- Rule 1006
Preparation of Summary
Rule 1006 Summaries Are Evidence
POINTS TO NOTE Prior Inconsistent Statement At Prior Proceeding Rule 801(d)(1)(A)
Grand Jury Testimony -- Rule 801(d)(1)(A)
Prior Inconsistent Statement Not In Prior Proceeding/Under Oath -- Rules 607 and 613
Impeaching Your Own Witness -- Rule 607
Evidence That A Witness Is Not To Be Believed -- Rule 608(a)
Bad Acts -- No Conviction -- Rule 608(b)
Good Faith Basis
Collateral Matter
Defendant's Statements -- Rule 801(d)(2)(A)
Immunity Agreement Brought Out On Direct -- Rule 607
Impeachment By Conviction On Nolo Plea -- Rule 609(a)
ARGUMENT Argument -- Generally
Example -- Chart For Preparing Argument
Style
ConclusionPart 2 Part 3
Footnotes: 1. This trial outline was originally developed by Charles J. Alexander, former Special Litigation Counsel to the Criminal Enforcement Sections of the Tax Division. This outline has been updated to include recent case law where appropriate.
Title Page || Table of Contents || Table of Cases || Trial of a Criminal Tax Case || Model Jury Instructions || Indictment & Information Forms ||
Uploaded December 15, 1997
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