## Handbook 9.6 Trial and Court Related Activities Chapter 4 TRIAL
### Contents [9.6] 4.1 OVERVIEW [9.6] 4.2 VENUE FOR TRIAL [9.6] 4.3 PROVISIONS OF THE CONSTITUTION [9.6] 4.4 PROVISIONS OF FEDERAL RULES (RULE 23) [9.6] 4.4.1 Trial by United States Magistrate Judge [9.6] 4.5 TRIAL JURORS (RULE 24) [9.6] 4.5.1 Voir Dire Examination [9.6] 4.5.2 Challenges for Cause and Peremptory Challenges [9.6] 4.5.3 Alternate Jurors [9.6] 4.6 DISABILITY OF JUDGE (RULE 25) [9.6] 4.7 EVIDENCE (RULE 26) TAKING OF TESTIMONY [9.6] 4.7.1 Definition of Evidence [9.6] 4.7.2 Classifications of Evidence [9.6] 4.7.3 Oral and Documentary Evidence [9.6] 4.7.3.1 Best Evidence Rule [9.6] 4.7.3.2 Application of Best Evidence Rule [9.6] 4.7.3.3 Secondary Evidence [9.6] 4.7.3.4 Admissibility of Specific Forms of Documentary Evidence [9.6] 4.7.3.4.1 Business Records Federal Shop Book Rule [9.6] 4.7.3.4.2 Photographs, Photostats, and Microfilmed Copies [9.6] 4.7.3.4.3 Admissibility of Transcripts as Evidence [9.6] 4.7.3.4.4 Admissibility of Charts, Summaries and Schedules as Evidence [9.6] 4.7.3.4.5 Admissibility of Notes, Diaries, Workpapers, and Memorandums as Evidence [9.6] 4.7.3.4.6 Evidence to Prove Specific Transactions [9.6] 4.7.3.4.7 Official Government Records [9.6] 4.7.3.4.7.1 Authentication of Official Records [9.6] 4.7.3.4.8 Proof of Lack of Official Record [9.6] 4.7.3.5 State and Territorial Statutes and Procedures [9.6] 4.7.3.6 Chain of Custody [9.6] 4.7.3.6.1 Identification of Seized Documentary Evidence [9.6] 4.7.3.6.2 Form 5397, Evidence Envelope [9.6] 4.7.4 Relevancy and Competency of Evidence [9.6] 4.7.5 Judicial Notice [9.6] 4.7.6 Presumptions [9.6] 4.7.7 Burden of Proof [9.6] 4.7.8 Hearsay (Federal Rules of Evidence Article VIII) [9.6] 4.7.8.1 Rule 801(d)(1)(A) [9.6] 4.7.8.2 Rule 801(d)(2) [9.6] 4.7.8.3 Rules 803 and 804 Exceptions [9.6] 4.7.8.3.1 Rule 803(1) Present Sense Impression [9.6] 4.7.8.3.2 Rule 803(2) Excited Utterance [9.6] 4.7.8.3.3 Rule 803(3) Existing Mental, Emotional, or Physical Condition [9.6] 4.7.8.3.4 Rule 803(4) Statements for Purposes of Medical Diagnosis or Treatment [9.6] 4.7.8.3.5 Rule 803(5) Recorded Recollection [9.6] 4.7.8.3.6 Rule 803(6) Records of Regularly Conducted Activity [9.6] 4.7.8.3.7 Rule 803(8) Public Records and Reports [9.6] 4.7.8.3.8 Rule 803(17) Market Reports, Commercial Publications [9.6] 4.7.8.3.9 Rule 803(21) Reputation as to Character [9.6] 4.7.8.3.10 Rule 803(22) Judgment of Previous Conviction [9.6] 4.7.8.3.11 Rule 807 Residual Exception [9.6] 4.7.8.3.12 Rule 804, Hearsay Exceptions: Declarant Unavailable [9.6] 4.8 OPENING STATEMENTS [9.6] 4.9 PRESENTATION OF CASE [9.6] 4.9.1 Witnesses [9.6] 4.9.1.1 Competence [9.6] 4.9.1.2 Credibility [9.6] 4.9.1.3 Impeachment [9.6] 4.9.1.3.1 Rehabilitation of a Witness [9.6] 4.9.1.3.2 Impeachment of a Defendant [9.6] 4.9.1.4 Impeachment by a Party of His Own Witness [9.6] 4.9.1.5 Recall [9.6] 4.9.1.6 Refreshing Memory or Recollection [9.6] 4.9.1.6.1 Past Recollection Recorded [9.6] 4.9.1.6.2 Present Recollection Revived [9.6] 4.9.2 Specific Witnesses [9.6] 4.9.2.1 Expert Witness [9.6] 4.9.2.2 Special Agent [9.6] 4.9.2.3 Revenue Agent [9.6] 4.9.3 Cross-Examination [9.6] 4.9.4 Demands for Production of Statements and Reports of Witness [9.6] 4.9.5 Redirect Examination [9.6] 4.10 STIPULATIONS [9.6] 4.11 MOTION FOR JUDGMENT OF ACQUITTAL (RULE 29) [9.6] 4.12 REBUTTAL [9.6] 4.13 INSTRUCTIONS TO THE JURY (RULE 30) [9.6] 4.14 VERDICT (RULE 31) [9.6] 4.15 JUDGMENT (RULES 32 THROUGH 35) [9.6] 4.15.1 Presentence Investigation [9.6] 4.15.2 Withdrawal of Plea of Guilty [9.6] 4.15.3 Sentence [9.6] 4.15.4 Probation [9.6] 4.16 RIGHT OF APPEAL [9.6] 4.17 COMPROMISE OF CRIMINAL TAX CASES [9.6] 4.18 RESPONSIBILITY AND CONDUCT OF SPECIAL AGENT AT TRIAL [9.6] 4.19 SEPARATION OF WITNESSES [9.6] 4.20 POST-TRIAL COST OF PROSECUTION MEMORANDUM [9.6] 4.21 COMMUNICATION OF INFORMATION RELEVANT FOR SENTENCING PURPOSES TO THE PROBATION OFFICER AND THE ASSISTANT UNITED STATES ATTORNEY [9.6] 4.22 UNITED STATES TAX COURT
### [9.6] 4.1 (07-15-1998) OVERVIEW
The following sections cover Federal Court Procedures and Related Matters: Venue for Trial Provisions of the Constitution Provisions of the Federal Rules (Rule 23) Trial Jurors (Rule 24) Disability of Judge (Rule 25) Evidence (Rule 26) Taking of Testimony Opening Statements Presentation of Case Motion for Judgment of Acquittal (Rule 29) Rebuttal Instructions to Jury (Rule 30) Verdict (Rule 31) Judgment (Rules 32 Through 35) Right of Appeal Compromise of Criminal Tax Cases Responsibility and Conduct of Special Agent at Trial Separation of Witnesses Post-Trial Communication of Information Relevant for Sentencing Purposes to the Probation Officer and the Assistant United States Attorney United States Tax Court
### [9.6] 4.2 (12-07-1999) VENUE FOR TRIAL
Venue for trial lies in the judicial district in which the crime was committed. Venue could lie in more than one judicial district. For example, an income tax return is prepared, signed, and mailed in one judicial district and is filed in another judicial district, venue may lie in either judicial district, or where the taxpayer resides. Failure to comply with a regulation as to the performance of a particular act under the Internal Revenue Code (IRC) constitutes a crime at the place where the compliance must occur. In a willful failure to file investigation where the crime is an act of omission as opposed to commission, the venue lies in the judicial district where the return should have been filed with the Service or where the taxpayer resides. Service regulations authorize an option to hand carry returns to the District Director's office, as well as to the person assigned the administrative supervision of any IRS permanent post of duty. This provision establishes venue in the judicial district where the District Director's office or a permanent post of duty is located, as well as in the judicial district where the service center is located. For example, if a defendant resides in a revenue district located in one judicial district, has his or her place of business in a revenue district in another judicial district, and is required to file his or her return at a service center located in still another judicial district, venue may lie in any of the three judicial districts. Title 18 U.S.C. Section 3237(b) provides that where an offense is described in IRC 7203, or where venue for prosecution of an offense described in Section 7201 or 7206(1), (2), or (5) of the Code is based solely on a mailing to the Internal Revenue Service, and prosecution is begun in a judicial district other than the judicial district where the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed; provided, that the motion is filed within twenty days after arraignment of the defendant upon indictment or information. Consider the following facts as a part of the evidence section to determine venue: Residence address of the taxpayer at the time the alleged offense was committed. Principal business address of the taxpayer at the time the alleged offense was committed. Place where the records were maintained, where the return was prepared, and where the return was signed. If the return was mailed, the location of the post office. If the return was not mailed, the location of the IRS office that the return was delivered. Any other pertinent evidence that may establish venue outside the judicial districts that the service center or district office is located, or other facts which might assist in determining venue. When a choice of venue for a trial exists, it is preferable that it be in the judicial district of the taxpayer's place of residence or business, to avoid undue travel hardships on taxpayers and witnesses.
### [9.6] 4.3 (07-15-1998) PROVISIONS OF THE CONSTITUTION
The Constitution of the United States provides in part: The trial of all Crimes, except in Cases of Impeachment, shall be by jury. . . . and in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . .
### [9.6] 4.4 (09-01-1999) PROVISIONS OF FEDERAL RULES (RULE 23)
A defendant is entitled to a trial by jury but may waive that right. The waiver must be done in writing, approved by the court, and consented to by the government. If a jury trial is waived, the court decides the case on the competency and relevancy of the evidence, determining the facts, and applying the law. Juries consist of 12 persons. The prosecution and defense may stipulate in writing at any time prior to the verdict, with the approval of the court, that the jury consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more of the jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, a valid verdict, in the discretion of the court, may be returned by the remaining 11 jurors.
### [9.6] 4.4.1 (12-07-1999) Trial by United States Magistrate Judge
Title 18 U.S.C. Section 3401 provides that a United States Magistrate Judge may have jurisdiction to try persons accused of misdemeanors, and sentence persons convicted of misdemeanors committed in that judicial district if specially designated by the district court. A defendant must consent to such in writing or orally on the record.
### [9.6] 4.5 (07-15-1998) TRIAL JURORS (RULE 24)
Statutory law determines how trial jurors are selected. The court decides the manner of questioning prospective jurors. Usually the court conducts the examination and then permits the defendant or the defendant's attorney and the attorney for the government to supplement the examination by further inquiry.
### [9.6] 4.5.1 (07-15-1998) Voir Dire Examination
The purpose of the voir dire examination is to safeguard the right to jury trial which guarantees the criminally accused a fair trial by a panel of impartial, indifferent jurors. The requirement of impartiality demands that vior dire examination serve as a filter capable of screening out prospective jurors who are unable to lay aside any opinion as to guilt or innocence and render a verdict based on evidence presented to the court.
### [9.6] 4.5.2 (12-07-1999) Challenges for Cause and Peremptory Challenges
Any juror will be excused for cause if he or she admittedly is unable to render a verdict on the evidence alone and on the law as the court charges. In addition to challenges for cause, the defendant is given 10 peremptory (without cause) challenges and the government 6 in felony trials. Each side has 3 peremptory challenges in misdemeanor trials. If there is more than one defendant, the court may allow the defendants additional peremptory challenges to be exercised separately or jointly.
### [9.6] 4.5.3 (12-07-1999) Alternate Jurors
In addition to the 12 jurors the court may direct that not more than 6 jurors be called as alternate jurors. They sit with the regular jurors and replace, in the order in which they are selected, any juror who becomes unable to perform their duties prior to the time the jury retires to consider its verdict. If the regular jury remains intact, the alternates are dismissed following the court's instructions in the case. Each side is entitled to 1 additional peremptory challenge if 1 or 2 alternate jurors are to be impaneled, 2 additional peremptory challenges if 3 or 4 alternate jurors are to be impaneled, and 3 peremptory challenges if 5 or 6 alternate jurors are to be impaneled.
### [9.6] 4.6 (07-15-1998) DISABILITY OF JUDGE (RULE 25)
This rule provides for the replacement of the presiding judge if the judge is unable to perform his or her duties after a verdict or finding of guilt or during the trial because of absence from the district, death, sickness, or other disability.
### [9.6] 4.7 (07-15-1998) EVIDENCE (RULE 26) TAKING OF TESTIMONY
In all trials, the testimony of witnesses is taken orally in open court, unless otherwise provided by law or these rules. The admissibility of evidence is governed by the Federal Rules of Evidence. This is a comprehensive code of evidence intended to govern the admissibility of proof in all trials before the federal courts.
### [9.6] 4.7.1 (12-07-1999) Definition of Evidence
Evidence is defined as all the means by which any alleged matter or fact is established or disproved. Investigators obtain evidentiary facts which directly or by inference tend to prove or disprove the ultimate, main, or principal fact. The latter is a matter for determination by a court or jury.
### [9.6] 4.7.2 (12-07-1999) Classifications of Evidence
Direct evidence proves the existence of the principal or ultimate fact without any inference or presumption. It is direct when the very facts in dispute are sworn to by those who have actual knowledge of them by means of their senses. It may take the form of admissions or confessions made in or out of court. Circumstantial evidence tends to prove the existence of the principal fact by inference. The use of circumstantial evidence is recognized by the courts as a legitimate means of proof, and involves proving several material facts which, when considered in their relationship to each other, tend to establish the existence of the principal or ultimate fact. In the absence of a confession of a witness to whom the violator has expressed his intent, violations involving willful intent are proved by circumstantial evidence. It is the only type of evidence generally available to show such elements of a crime as malice, intent, or motive, which exist only in the mind of the perpetrator. The proof of most Internal Revenue violations, therefore, is based on circumstantial evidence. Circumstantial evidence includes direct testimony as to secondary facts which are relied on to establish the main fact in issue. For example, in a tax evasion investigation, a taxpayer's customer testifies that he or she paid $10,000 for merchandise and a government agent testifies that the payment does not appear on the taxpayer's books and tax returns. Those facts constitute direct evidence of the omission of $10,000 in income but not of the main issue, which is, "Did the defendant willfully attempt to evade income tax?" In addition to proving intent, circumstantial evidence is also frequently used to prove unreported income as shown by increases in net worth, expenditures, or bank deposits. Circumstantial evidence may be as cogent and convincing as direct evidence and the jury may properly find that it outweighs conflicting direct evidence. However, the inference must be based on convincing facts and must be a more probable and natural one than other explanations offered.
### [9.6] 4.7.3 (07-15-1998) Oral and Documentary Evidence
Evidence may be presented orally through witnesses, or by the introduction of records or other physical objects. Oral testimony consists of statements made by living witnesses under oath or affirmation. Documentary evidence consists of writings such as judicial and official records, contracts, deeds, and less formal writings such as letters, memorandums, and books and records of private persons and organizations. Maps, diagrams, and photographs are classed as documentary evidence.
### [9.6] 4.7.3.1 (12-07-1999) Best Evidence Rule
The best evidence rule, applies only to documentary evidence. It requires that the best proof of the contents of a document is the document itself. The best evidence rule is confined to instances where it is sought to prove the contents of the document. Facts about a document other than its contents are provable without its production. Production consists of either making the writing available to the judge and counsel for the adversary, or having it read aloud in open court. For example, the fact that a sales contract was made is a fact separate from the actual terms of the contract and may be proved by testimony alone. Certain documents, such as leases, contracts or even letters, which are executed in more than one copy are all considered originals and any one of the copies may be produced as an original.
### [9.6] 4.7.3.2 (12-07-1999) Application of Best Evidence Rule
When an original document is not produced, secondary evidence, which could consist of testimony of witnesses or a copy of the writing, will be received to prove its contents if the absence of the original is satisfactorily explained. Unavailability of the original document is a question to be decided by the trial judge. The best evidence rule will not be invoked to exclude oral testimony of one witness merely because another witness could give more conclusive testimony.
### [9.6] 4.7.3.3 (12-07-1999) Secondary Evidence
All evidence falling short of the standard for best evidence is classed as secondary evidence. When it is shown from the face of the evidence itself or by other proof that better evidence was or is available, the evidence is classified as secondary evidence. Secondary evidence may be either the testimony of witnesses or a copy of the document. There is no settled federal rule stating which of these is a higher degree of secondary evidence. Before secondary evidence of any nature may be admitted, there must be satisfactory evidence of the present or former existence of an original document, properly executed and genuine. It must be established that the original has been destroyed, lost, stolen, or is otherwise unavailable. In all instances, except destruction provable by an eyewitness, the party proving the document must have used all reasonable means to obtain the original, i.e., must have made such diligent search as was reasonable under the facts. Some cases have specifically set the rule that a search must be made in the place where the document was last known to be, or that inquiry must be made of the person who last had custody of it. In every instance, the sufficiency of the search is a matter to be determined by the court. If a document is offered as secondary evidence it must be shown to be a correct copy of the original. When the original document has been destroyed by the party attempting to prove its contents, secondary evidence of the contents will be admitted, only if the destruction was in the ordinary course of business, or by mistake, or even intentionally, provided it was not done for any fraudulent purpose. In the Granquist case the defendant's income tax returns had been destroyed pursuant to Executive Order and statutory authority. At the trial, secondary evidence in the form of oral testimony and state returns was admitted to establish the contents of the missing income tax returns. In a civil case, secondary evidence of the contents of a document may be introduced if the original is in the possession of the opponent in the matter, provided the party attempting to introduce the copy has first served a notice upon his or her opponent to produce the original, and the opponent has failed to do so. In a criminal case not involving corporate records, the Government may introduce secondary evidence of the defendant's records without showing prior notice to produce. The Lisansky case presents a full statement of this rule and illustrates its application. The defendants in the case, on trial for income tax evasion, argued that the court, in allowing Government agents to testify about the contents of the defendant's books and records and permitting photostatic pages of the books to be introduced in evidence, violated the best evidence rule. The Court of Appeals held: "So far as the best evidence rule is concerned, the government complied with this rule, in that it produced the best proof which could be produced under the circumstances of the case. The books were shown to be in possession of the defendants; and, because of the provisions of the Fourth and Fifth Amendments, the court was without power to require their production at the trial. *** But evidence as to the contents of books and papers is not lost to the government because the defendant has them in his possession and their production cannot be ordered or the usual basis laid for the introduction of secondary evidence. In such cases, the rule is that when they are traced to his or her possession, the government, without more ado, may offer secondary evidence of their contents."
### [9.6] 4.7.3.4 (07-15-1998) Admissibility of Specific Forms of Documentary Evidence
Admissibility in the federal courts of various forms of documentary evidence is covered in sections 1731 through 1745 of Title 28, United States Code.
### [9.6] 4.7.3.4.1 (12-07-1999) Business Records Federal Shop Book Rule
Records made in the regular course of business may be admissible under 28 U.S.C. Section 1732 which states: "If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection (section) shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence." The above statute permits showing that an entry was made in a book maintained in the regular course of business without producing the particular person who made the entry and having him or her identify the entry. For example, in proving a sale, an employee of the customer may appear with the original purchase journal and cash disbursements book of the customer, to testify that these were books of original entry showing purchases by the customer and payments by him or her to a taxpayer for these purchases, even though the witness is not the person who made the entries. The essence of the "regular course of business" rule is the reliance on records made under circumstances showing no reason or motive to misrepresent the facts. As stated, the rule contemplates that certain events are regularly recorded as routine reflections of the day-to-day operations of a business so that the character of the records and their earmarks of reliability impact trustworthiness. For example, the rule is applied to bank records under the theory that the accuracy of the records is essential to the very life of the bank's business. The mere fact that a record has been kept in the regular course of business is not of itself enough to make it admissible. The rules of competency and relevancy must still be applied, the same as for any other evidence. If a ledger is offered in evidence to prove entries posted from a journal which is available, the journal itself, as the book of original entry, should be produced. When in the regular course of business it is the practice to photograph, photostat, or microfilm the business records mentioned above, such reproductions when satisfactorily identified are made as admissible as the originals by statute (28 U.S.C. Section 1732). Similarly, enlargements of the original reproductions are admissible if the original reproduction is in existence and available for inspection under the direction of the court. This rule is particularly helpful in connection with bank records because of the common practice of microfilming ledger sheets, deposit tickets, and checks.
### [9.6] 4.7.3.4.2 (12-07-1999) Photographs, Photostats, and Microfilmed Copies
Photographs, photostats, and microfilmed copies of writings not made in the regular course of business are considered secondary evidence of the contents. They are inadmissible if the original can be produced and no reason is given for failure to produce it. The same rule is usually applied where the original is already in evidence and no reason has been given for offering the copy. The practice has sometimes been followed in income tax cases, of placing the original return in evidence and then substituting a photostat with permission of the court where there has been no defense objection. IRC 7513 as amended provides for reproduction of returns and other documents, and covers use of the reproductions as follows: "In General--The Secretary is authorized to have any federal agency or person process films or other photo-impressions of any return, document, or other matter, and make reproductions from films or photo-impressions of any return document, or other matter." A photographic or photostatic reproduction of a document may be admitted after evidence has been produced that the original cannot be obtained and that the reproduction is an exact and accurate copy. This principle has been followed where the original was in the hands of the defendant and its production could not be compelled by the government. It has further been held that a photograph of a promissory note taken because the writing was becoming faded and illegible was admissible in place of the illegible original. When photostats of documents are obtained during an investigation they shall be initialed on the back, after comparison with the original, by the one who made the photostat or by the agent who obtained the document which was photostated. The date of such comparison shall be noted following the initials. The source of the original document shall be set out on the reverse of the photostat or on an initialed attachment or memorandum relating to each photostat or group of photostats covered by the one memorandum. This procedure will ensure proper authentication at a trial. A Multi-Stamp Stencil Duplicator or other similar device may be used for placing such identifying data with the exception of the agent's initials. The special agent will personally affix his or her initials on such reproductions.
### [9.6] 4.7.3.4.3 (12-07-1999) Admissibility of Transcripts as Evidence
Transcripts are copies of writings and are admissible under the same principles governing the admission of photographs or photostatic reproductions. A special agent shall take certain precautions in the preparation of transcripts to ensure proper authentication for their admission at a trial when the original documents are unavailable. The agent shall carefully compare the transcript with the original and certify that it is a correct transcript. The certification shall show the date that the transcript was made, by whom and where it was made, and the source from which it was taken. Each page shall be identified by the special agent to show that it forms part of the whole. A good practice is to show the total number of pages involved, as page 1 of 5 pages. When a partial transcript is made, it should be so indicated, for example, "excerpt from page 5 of the cash receipts book." In the Zacher case a government agent was allowed to identify a transcript of the taxpayer's bank records, which the agent testified had been prepared by fellow agents under his or her direction, control, and supervision.
### [9.6] 4.7.3.4.4 (09-01-1999) Admissibility of Charts, Summaries and Schedules as Evidence
Charts and summaries prepared by examining agents may be placed in evidence at the discretion of the court if they are summaries of evidence previously admitted in a case. This is permitted as a matter of convenience to the court and jury. At times such charts and summaries have been permitted in the jury room to aid in the jury's deliberations. Charts are particularly effective in net worth investigations to summarize the details of the various items and computations upon which the additional income is based. Summaries are frequently used to simplify the presentation of a great number of transactions upon which a specific item investigation is based. For example, with respect to the purchase and resale of used automobiles, a schedule of those items showing the details of the transactions can be admitted into evidence after the introduction of the pertinent records and testimony. However, care should be exercised in the preparation of charts and summaries to avoid prejudicial headings or titles. For example, a chart listing a series of unreported sales should not be entitled "Fraudulently Omitted Sales" . A schedule prepared by the investigating agent from the taxpayer's books and records is admissible as secondary evidence of their contents. It should be properly certified and authenticated in a similar manner to that used for transcripts.
### [9.6] 4.7.3.4.5 (07-15-1998) Admissibility of Notes, Diaries, Workpapers, and Memorandums as Evidence
Notes, diaries, workpapers, and memorandums made by examining agents during an investigation ordinarily are not considered evidence. However, they may be used on the witness stand or prior to testifying as an aid to recollection or may be introduced into evidence by the adverse party if they constitute impeaching evidence. Any documents used by a witness while on the stand are subject to inspection by the defense. They should always be carefully prepared to ensure that the whole truth is reflected because of their possible use in court.
### [9.6] 4.7.3.4.6 (12-07-1999) Evidence to Prove Specific Transactions
In proving specific transactions such as purchases and sales of real and personal property loans, encumbrances, and other commercial events, it is not enough for the special agent to obtain the written record of those transactions. Documents and recorded entries, no matter how honestly made, are not in themselves facts. They are written descriptions of events but are not in themselves proof of the events. Consequently, witnesses should be produced who will testify about the transactions and authenticate the documents. During the investigation, parties to the transactions should be questioned to determine whether the documents or entries truthfully relate all the facts, and that there are no additional facts or circumstances which have not been recorded. The following examples illustrate this principle: In the instance of alleged unreported sales, the witness should be interviewed to determine whether checks and invoices represent all the transactions with the taxpayer, whether the documents truthfully record the events, whether additional sums might have been paid or refunded, whether there were any other methods of payment or other parties to the transaction, and whether there is other relevant information. A contract of sale, settlement sheet, closing statement or recorded deed does not necessarily reflect all the facts involved in a real estate transaction. Currency payments over and above those shown in the instrument and nominees may be revealed through questioning the parties to the transaction. Mortgages and other encumbrances may not actually exist although recorded documents seem to evidence such facts. Proof of real estate transactions should, therefore, include the testimony of the parties involved. No question of admissibility is involved when different items of documentary evidence may be used to prove a fact. The only thing involved in such instance is the weight of the evidence, which is determined by the jury in the same way as the weight of any other evidence placed before it. Where the government is trying to prove that a third party made purchases from the taxpayer, a canceled check of the third party to the order of the taxpayer will not be excluded from evidence merely because purchase invoices, purchase journals, or cash disbursements books of the party, although available, have not been produced. The fact that the check itself may not be the best proof of payment for a purchase is a factual question for the jury. However, complete documentation of every transaction should be obtained whenever possible.
### [9.6] 4.7.3.4.7 (12-07-1999) Official Government Records
The admissibility of official government records and copies or transcripts in federal proceedings is covered by provisions of the United States Code and by rules of criminal and civil procedure.
### [9.6] 4.7.3.4.7.1 (12-07-1999) Authentication of Official Records
The admissibility of official records and copies or transcripts is provided for by the United States Code (28 U.S.C. Section 1733), as follows: Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction, or occurrence as a memorandum of which the same were made or kept. Properly authenticated copies or transcripts of any books, records, papers, or documents of any department or agency of the United States shall be admitted in evidence equally with the originals. The method of authentication of copies of federal records is set forth in Federal Rule of Civil Procedure 44 which is made applicable to criminal cases by Rule 27 of the Federal Rules of Criminal Procedure. Authentication of a copy of a government record under these rules would consist of a certification by the officer having custody of the records and verification of the official status of the certifying officer by a federal district judge over the seal of the court. Verification of the official status of District Directors is not required on authenticated copies of IRS documents certified to by District Directors over their seal of office (26 U.S.C. Section 7514). Tax returns which have been filed, or certified copies of them, are admissible under Title 28, Section 1733, as official records of the IRS (26 U.S.C. Section 6103). Procedures and types of forms for the certification of tax returns or other official records by District Directors are set forth in the Disclosure of Official Information Handbook. Although tax returns or other official records are usually offered in evidence through a Service representative, authenticated copies are generally admissible without a representative. A Certificate of Assessments and Payments (Form 4340, for non-ADP returns) or a Computer Transcript (Form 4303, for ADP returns) is customarily offered in evidence through a representative of the IRS as a transcript of the records to which it relates. These forms, properly authenticated in accordance with Rule 44 of the Federal Rules of Civil Procedure, are admissible without the presence of an IRS representative.
### [9.6] 4.7.3.4.8 (12-07-1999) Proof of Lack of Official Record
It is sometimes desirable or necessary to prove that a search of official files has resulted in a finding that there is no record of a certain document. For example, in a prosecution for failure to file an income tax return, the government, in addition to such oral testimony as it may introduce, may desire some documentary certification that a search had disclosed no record of such return. Rule 44(b) of the Federal Rules of Civil Procedure makes the following provision for lack of record: "A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law." Procedures and a standard form for the certification of a lack of records by District and Service Center Directors are set forth in the Disclosure of Official Information Handbook.
### [9.6] 4.7.3.5 (12-07-1999) State and Territorial Statutes and Procedures
The admissibility of copies of legislative acts of any state, territory, or possession of the United States and of court records and judicial proceedings, is provided for in 28 U.S.C. Section 1738 as follows: "Such acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such State, territory or possession from which they are taken." The procedures for authentication of the above records are detailed in 28 U.S.C. Section 1738. Nonjudicial records or books kept in any public office of any State, Territory, or Possession of the United States, or copies thereof, are admissible by 28 U.S.C. Section 1732 and given full faith and credit upon proper authentication.
### [9.6] 4.7.3.6 (12-07-1999) Chain of Custody
Chain of custody is the preservation by successive custodians of the instrument of a crime or any relevant writing in its original condition. Documents or other physical objects may be the instrumentalities used to commit a crime and are generally admissible as such. However, the trial judge must be satisfied that the writing or other physical object is in the same condition as it was when the crime was committed. Consequently, the witness through whom the instrument is sought to be introduced must be able to identify it as being in the same condition as when it was recovered. Special agents must, therefore, promptly identify and preserve in original condition all evidentiary matter that may be offered into evidence. This would particularly apply to records, recordings, videotapes, documents and other paraphernalia seized in a raid.
### [9.6] 4.7.3.6.1 (12-07-1999) Identification of Seized Documentary Evidence
In order that a seized document may be admissible as evidence, it is necessary to prove that it is the document that was seized and that it is in the same condition as it was when seized. Since several persons may handle it in the interval between the seizure and the trial of the case, it should be adequately marked at the time of seizure for later identification, and its custody must be shown from that time until it is introduced in court. A special agent who seizes documents should at once identify them by some marking so that he or she can later testify that they are the documents seized, and that they are in the same condition as they were when seized. The special agent may, for instance, put his or her initials and the date of seizure on the margin, in a corner or some other inconspicuous place on the front, or on the back of each document. If circumstances indicate that such marking may render the document subject to attack on the ground that it has been defaced or it is not in the same condition as when seized, the special agent may, after making a photostat or other copy for comparison or for use as an exhibit to his or her report, put the document into an envelope and write a description and any other identifying information on the face of the envelope.
### [9.6] 4.7.3.6.2 (07-15-1998) Form 5397, Evidence Envelope
In order to preserve in original condition all evidentiary matter that may be offered into evidence, material, such as records, recordings, videotapes, documents and paraphernalia seized in a raid, should be inventoried, sealed, and maintained in an Evidence Envelope, Form 5397. This process should be initiated by the first special agent who has access to any such evidentiary material. The Evidence Envelope should be filled out on its face with all the appropriate available information. The envelope should be sealed in the presence of a witness. The sealer and witness should each apply their signature and date straddling the sealed envelope flap seam, and the flap seam should be covered with clear cellulose tape. The lower portion of the face of the envelope has a printed receipt log to be filled in when the envelope is turned over to another person. Evidentiary material that is too bulky to be placed in an evidence envelope may be sealed in a carton or other appropriate container. An Evidence Envelope, Form 5397, can be affixed to the container with the face of the envelope appropriately filled out. No evidence container should be opened unless a witness is present. An evidence envelope should be opened by slitting along one of its edges. When a container is opened, the following should be noted on the container: that the container was opened; the date; who opened it; who witnessed it; the reason for opening it; and that the contents were examined and were found to be identical with the description listed on the front of the evidence envelope. An Evidence Envelope, Form 5397, will only be sealed once. Should it become necessary to open a sealed envelope, that envelope will not be used again to store evidence. A new Form 5397 will be prepared and the evidence will be sealed in the envelope as in (1), above. The old envelope(s) will be retained and affixed to the new one in order to preserve the chain of evidence.
### [9.6] 4.7.4 (12-07-1999) Relevancy and Competency of Evidence
To be admissible, evidence must be relevant and competent. If a fact offered in evidence relates in some logical way to the principal fact, it is relevant. The word, relevant, implies a traceable and significant connection. A fact need not bear directly on the principal fact. It is sufficient if it constitutes one link in a chain of evidence or that it relates to facts which would constitute circumstantial evidence that a fact in issue did or did not exist. One fact is logically relevant to another if, taken by itself or in connection with other facts, it proves or tends to prove the existence of the other fact. If the fact is logically relevant, it is also legally relevant unless it is barred by some rule of evidence. The principal question to be resolved in determining relevancy is: "Would the evidence be helpful to the finder of the fact in resolving the issue?" (Rule 401, Federal Rules of Evidence). The terms, relevant and competent, are not synonymous. Evidence must not only be logically relevant and sufficiently persuasive but also legally admissible, in other words, competent. As applied to evidence such as documents, evidence is competent if it was obtained in a manner, in a form, and from a source proper under the law. Examples of evidence which is not competent are a confession involuntarily obtained or an unsigned carbon copy of a document which is offered without any explanation for the failure to produce the original. Evidence may have limited admissibility. The fact that certain evidence is not admissible for one purpose does not preclude its use for another. An evidentiary fact may not be admissible as independent proof of the principal fact, and yet be admitted to corroborate or impeach. To illustrate, tax returns for years prior to those in an indictment may be used to corroborate the starting point for a net worth computation although they would not be admissible as proof of the charge of attempted evasion. A special agent should obtain and report all facts which logically relate to the subject of the investigation. The special agent should not omit any significant facts because of doubt regarding their relevance. There are no absolute and concrete standards for relevancy because the facts vary in each instance. Judges have broad discretion in determining what evidence is relevant.
### [9.6] 4.7.5 (12-07-1999) Judicial Notice
To save time and expense, a trial judge may accept certain facts without requiring proof, if they are commonly and generally known, or can be easily discovered. Judicial notice of such facts takes the place of proof and is of equal force. This does not prevent a party from introducing evidence to dispute the matter. A matter of judicial notice has three material requisites: It must be a matter of common and general knowledge. It must be well-settled and not uncertain. It must be known to be within the limits of the jurisdiction of the court. A federal court must take judicial notice of such matters as the Constitution, statutes of the United States (including legislative history), treaties, contents of the Federal Register, in which the Internal Revenue and other administrative regulations are published, and the laws of each state. Laws of foreign jurisdictions are not judicially noticed. A federal court will judicially notice its record in the same case and may also take judicial notice of proceedings in other courts, both within and outside the federal judicial system, if the proceedings have a direct relation to matters at issue. It is not required to notice prior litigation in the same court, but may do so under certain circumstances where the prior proceedings are closely related, as in a contempt proceeding. Federal courts may also judicially notice such matters as scientific and statistical facts, well-established commercial usages and customs, and historical and geographical facts.
### [9.6] 4.7.6 (12-07-1999) Presumptions
A presumption is a rule of law which permits the drawing of a particular inference as to the existence of one fact not certainly known from the existence of other particular facts. Although it is not evidence, it may be considered as a substitute for evidence. Any inference is a permissible deduction from the evidence and may be accepted or rejected. It differs from a presumption in that the latter is a rule of law affecting the duty of proceeding with the evidence. Presumptions may be conclusive or rebuttable. A conclusive presumption is binding upon the court and jury and evidence in rebuttal is not permitted. For example, it is generally recognized that an child under the age of 7 is conclusively presumed to be incapable of committing a felony. A rebuttable presumption is one which prevails until it is overcome by evidence to the contrary. Some rebuttable presumptions are: In criminal cases, a defendant is presumed to be innocent until proved guilty beyond a reasonable doubt. A presumption as to authenticity of signatures on Internal Revenue documents is covered by IRC 6064, which provides: "The fact that an individual's name is signed to a return, statement, or other document shall be prima facie evidence for all purposes that the return, statement, or other document was actually signed by him." Presumptions as to the authorization for signing corporation and partnership returns are contained in IRC 6062 and 6063. It is presumed that public officers perform their duties according to law and do not exceed their authority. Every person is presumed to know the law, and ignorance of the law is no excuse for its violation. This presumption does not relieve the government from proving willfulness in criminal actions for violation of the Internal Revenue laws. The defendant may show his or her misconception of the Internal Revenue law as evidence of lack of willfulness. Willfulness requires that the government prove that the law imposed a duty on the defendant, and that the defendant voluntarily and intentionally violated that duty. In order for the government to prove actual knowledge of the pertinent legal duty, it must also disprove a defendant's claim of ignorance of the law or a claim that because of a misunderstanding of the law, the defendant had a good-faith belief that he or she was not violating the law. Evidence of actions such as hiding assets or using nominee names can disprove a defendant's claim of a misunderstanding of the law. A person signing an instrument is presumed to have knowledge of its contents. A person of ordinary intelligence is presumed to intend the natural and probable consequences of his voluntary acts. Although this presumption in itself will not relieve the burden of proving willfulness, it does operate to permit inferences to be drawn from the acts of the defendant which may constitute the circumstantial proof of willfulness. The deductions and exclusions appearing on an income tax return are presumed to be all that exist. Every person is presumed to be sane. Proof that a letter, properly stamped and addressed, was mailed and not returned to the return address creates a presumption that it was received. The flight of a person accused of a crime or an attempt to evade arrest may create a presumption of guilt. The destruction, mutilation, or concealment of books and records or other evidence creates a presumption that the production of the records or evidence would be unfavorable to the person destroying them. A fabricator of evidence also creates a presumption against himself or herself. It is proper for a court to charge the jury that it may consider the taxpayer's refusal to produce his or her books and records for Internal Revenue inspection, in determining the question of willfulness.
### [9.6] 4.7.7 (12-07-1999) Burden of Proof
Burden of proof is the obligation of the party alleging the affirmative of an issue to prove it. This burden remains on the government throughout a criminal trial although the burden of going forward with evidence may shift from one side to the other. The doctrine of judicial notice and the operation of presumptions are aids in carrying the burden of proof and in proceeding with evidence. When the party having the burden of proof has produced sufficient evidence for the jury to return a verdict in favor of such party, a prima facie case has been established. This does not mean that the jury will render such a verdict, but that they could do so from the standpoint of sufficiency of evidence. At this point, the defendant has two choices, to offer no evidence, relying on the court and jury to decide that the government has not overcome the presumption of innocence, or offer evidence in his defense. If the defendant wishes to introduce new matters by way of denial, explanation, or contradiction, the burden of going forward with evidence is the defendant's. The prosecution still has the burden of proof with respect to the entire case. Proof beyond a reasonable doubt of every element of the crime charged is necessary for a conviction. In charging a jury as to the meaning of reasonable doubt, it has been stated: "A reasonable doubt, is a doubt founded upon a consideration of all the evidence and must be based on reason. Beyond a reasonable doubt does not mean to a moral certainty or beyond a mere possible doubt or an imaginary doubt. It is such a doubt as would deter a reasonably prudent man or woman from acting or deciding in the more important matters involved in his or her own affairs. Doubts which are not based upon a reasonable and careful consideration of all the evidence, but are purely imaginary, or born of sympathy alone, should not be considered and should not influence your verdict. It is only necessary that you should have that certainty with which you transact the more important concerns in life. If you have that certainty, then you are convinced beyond a reasonable doubt. A defendant may not be convicted upon mere suspicion or conjecture. A defendant should be acquitted if the evidence is equally consistent with innocence as with guilt." The IRC provides that the burden of proof is on the Commissioner where fraud is alleged. IRC 7454 states: "In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, the burden of proof in respect of such issue shall be upon the Secretary or his delegate." As a matter of general law, it has always been held that one who alleges fraud must prove it. The Restructuring and Reform Act of 1998 (RRA of 1998) shifted the burden of proof from the taxpayer to the IRS in civil tax cases in certain instances. If, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to determining the liability of the taxpayer, the burden of proof is shifted to the IRS. This shift to the IRS occurs if the taxpayer presents credible evidence to that issue and satisfies all of the following condition; (For further detail on this topic refer to IRC 7491 and RRA of 1998, section 1331.) Compliance with substantiation and recordkeeping requirements.--A taxpayer must comply with the substantiation and recordkeeping requirement of the IRC. Cooperation with the IRS.--The taxpayer must cooperate with reasonable requests by the IRS for witnesses, information, documents, meetings, and interviews. Net worth limitation for taxpayers other than individuals.--Taxpayers other than individuals must meet the net worth limitations that apply for awarding attorney fees. Corporations, trusts, and partnerships whose net worth exceeds $7,000,000 cannot benefit from this provision. The degree of proof required in civil cases is a "preponderance of evidence," except where fraud is alleged. In the latter instance, "clear and convincing evidence" is necessary in order to prevail on the fraud issue. Preponderance of evidence is evidence that will incline an impartial mind to one side rather than the other so as to remove the cause from the realm of speculation. It does not relate merely to the quantity of evidence. In the Wissler case, the court's instruction concerning preponderance of evidence was as follows: "The terms preponderance of evidence and greater weight of evidence as used in these instructions are terms of practically the same meaning, and when it is said that the burden rests upon either party to establish any particular fact or proposition by a preponderance or greater weight of evidence, it is meant that the evidence offered and introduced in support thereof to entitle said party to a verdict, should when fully and fairly considered produce the stronger impression upon the mind and be more convincing when weighed against the evidence introduced in opposition thereto. Such preponderance is not always to be determined by the number of witnesses on the respective sides, although it may be thus determined all other things being equal." Clear and convincing evidence is that which need not be beyond a reasonable doubt as in a criminal case but must be stronger than a mere preponderance of evidence. In the Gladden case, the court instructed the jury on this point as follows: "A mere preponderance of the evidence, meaning merely the greater weight of the evidence, is not sufficient to prove fraud. This does not mean that you must be convinced of fraud beyond a reasonable doubt, because this is not a criminal case. However, an allegation of fraud does require a greater degree of proof than is required in most civil cases, and a mere preponderance of the evidence, while enough to incline the mind of an impartial juror to one side of the issue rather than the other, is not enough to prove fraud. Fraud must be established by evidence which is clear, cogent, and convincing."
### [9.6] 4.7.8 (12-07-1999) Hearsay (Federal Rules of Evidence Article VIII)
A statement is an oral or written assertion or nonverbal conduct of a person, if it is intended by a person as an assertion (Rule 801(a)). Hearsay statements are inadmissible at trial unless an exception is applicable (Rule 802). Lack of opportunity for cross-examination and unreliability are the principal reasons for excluding hearsay testimony. Hearsay is a statement, other than one made by the declarant while testifying at the trial of hearing, offered in evidence to prove the truth of the matter asserted (Rule 801(c)). Evidence which does not come from the personal knowledge of the declarant but from the repetition of what the declarant has heard others say is hearsay. For example, testimony of a special agent that third parties made statements to the agent that checks written by a taxpayer were personal in nature is hearsay and inadmissible. The personal nature of the checks would be proved through the taxpayer's admissions and records, and testimony and records of the third parties.
### [9.6] 4.7.8.1 (07-15-1998) Rule 801(d)(1)(A)
Rule 801(d)(1)(A) provides that when a witness testifies at a trial or hearing and is subject to cross-examination concerning a prior statement inconsistent with the witness' present testimony, the prior statement may be admitted for its truth if the witness made it under oath in a previous proceeding (excluding grand jury) or deposition. A proceeding is a formal evidentiary hearing where the witness declarant is subject to cross-examination. Testimony taken by a special agent in an affidavit or question and answer statement does not qualify.
### [9.6] 4.7.8.2 (07-15-1998) Rule 801(d)(2)
Admissions of a party-opponent (e.g. taxpayer) which are offered against the party are not hearsay (Rule 801(d)(2)). The admissions include statements: made by the party; or shown to have been adopted or believed by the party (adoptive or implied admission); or made by a person authorized by the party to make a statement concerning the subject of the statement; or made by an agent or servant of the party concerning a matter within the scope of the agency or employment, and made during the existence of the relationship; or made by a co-conspirator during the course and in furtherance of a conspiracy.
### [9.6] 4.7.8.3 (12-07-1999) Rules 803 and 804 Exceptions
Rules 803 and 804 specify certain exceptions to the hearsay rule. The exceptions are based on the theory that under appropriate circumstances a hearsay statement is of the type that makes its trustworthiness and truthfulness highly probable and the statement is necessary to prove the fact alleged. In these instances the statements can be introduced by other than the declarant even though the declarant is available to testify. Rule 803, Hearsay Exceptions; Availability of Declarant Immaterial, lists 23 types of statements which are not to be excluded by the hearsay rule. Some of the more important exceptions are the following.
### [9.6] 4.7.8.3.1 (07-15-1998) Rule 803(1) Present Sense Impression
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
### [9.6] 4.7.8.3.2 (07-15-1998) Rule 803(2) Excited Utterance
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. This exception refers to spontaneous declarations and acts committed during the event. The trustworthiness of such statements lies in their spontaneity, for the occurrence must be startling enough to produce a spontaneous and unreflective utterance without time to contrive or misrepresent. Once the excitement passes, statements made are not within this exception. They may be made by participants or bystanders, and a person who made or heard such statements may testify about them in court. The trial judge has wide discretion in deciding the admissibility of unsworn statements. The circumstances involved in a raid on a bookmaking establishment may be used to illustrate the application of this rule. One of the persons in the establishment, upon seeing the raiding officers enter the room says: "Burn the betting slips!" Even though the speaker is never identified and is not available as a witness, an agent who heard the statement may be permitted to testify about it in a trial of John Doe, to prove that betting slips existed.
### [9.6] 4.7.8.3.3 (07-15-1998) Rule 803(3) Existing Mental, Emotional, or Physical Condition
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed, unless it relates to the execution, revocation identification, or terms of declarant's will. Example: Assume that the taxpayer is alleging that the return preparer was in a state of depression when the return was prepared and is responsible for errors on the tax return. A witness (e.g. the return preparer's secretary) who spoke with the return preparer at the time the return was being prepared, could testify that the return preparer expressed a feeling of mental well-being and confidence. The witness could testify whether or not the return preparer was available.
### [9.6] 4.7.8.3.4 (07-15-1998) Rule 803(4) Statements for Purposes of Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations.
### [9.6] 4.7.8.3.5 (07-15-1998) Rule 803(5) Recorded Recollection
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Example: A special agent has taken a question and answer statement from a witness. At trial, the witness no longer recollects the facts in the statement. Even if the witness has not initialed the pages or signed the statement, the facts of the statement could be read at trial as a record adopted by the witness. In the instance of an unsigned affidavit, if it can be shown that the witness indicated that the facts recorded were true, the facts of the unsigned affidavit could be read as a statement adopted by the witness. Similarly, if a witness had in some way indicated the adoption of a memorandum prepared by a special agent, the memorandum could be read as evidence.
### [9.6] 4.7.8.3.6 (07-15-1998) Rule 803(6) Records of Regularly Conducted Activity
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a 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, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. This rule permits showing that an entry was made in a business record maintained in the ordinary course of business without producing the person who made the entry. Where there is an indication that the particular record lacks trustworthiness, this rule does not apply. This rule extends the definition of business to include records of institutions and associations like schools, churches, and hospitals. The rule covers data compilations whether stored in a computer or elsewhere.
### [9.6] 4.7.8.3.7 (07-15-1998) Rule 803(8) Public Records and Reports
Records, reports, statements or data compilations, in any form, of public offices or agencies, regarding: the activities of the office or agency; or matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel; or civil actions and proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the source of information or other circumstances indicate lack of trustworthiness.
### [9.6] 4.7.8.3.8 (07-15-1998) Rule 803(17) Market Reports, Commercial Publications
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
### [9.6] 4.7.8.3.9 (12-07-1999) Rule 803(21) Reputation as to Character
Reputation of a person's character among his associates or in the community.
### [9.6] 4.7.8.3.10 (07-15-1998) Rule 803(22) Judgment of Previous Conviction
Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of 1 year, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
### [9.6] 4.7.8.3.11 (12-07-1999) Rule 807 Residual Exception
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness is admissible, if the court determines that: the statement is offered as evidence of a material fact; the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. NOTE: A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
### [9.6] 4.7.8.3.12 (12-07-1999) Rule 804, Hearsay Exceptions: Declarant Unavailable
Rule 804 concerns itself with hearsay exceptions that are limited to situations in which the declarant is unavailable as a witness. Rule 804 is quoted below. Unavailability as a witness includes situations in which the declarant: is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his or her statement; or persists in refusing to testify concerning the subject matter of his or her statement despite an order of the court to do so; or testifies to a lack of memory of the subject of his or her statement; or is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or is absent from the hearing and the proponent of his or her statement has been unable to procure his or her attendance by process or other reasonable means. A declarant is not unavailable as a witness if his or her exception, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the witness from attending or testifying. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: Former testimony. Testimony given by a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Under this section, it does not matter whether the opportunity for examination came in the form of direct or cross-examination, as long as there was adequate opportunity to develop the testimony of the witness in the prior formal hearing. Statement under belief of impeding death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. This exception is applicable only in homicide cases or related civil actions. Dying declarations are not normally relevant to tax investigations. Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him or her to civil or criminal liability, or to render invalid a claim by him or her against another, that a reasonable man or woman in his or her position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. The party introducing the statement should be prepared to show that the declarant was aware that the statement was against interest at the time it was made. Statement of personal or family history. A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
### [9.6] 4.8 (12-07-1999) OPENING STATEMENTS
At the beginning of the trial, the prosecution gives an opening statement to the court and if a jury trial, the jury. The defense follows. Opening statements primarily advise the court and/or jury what each party intends to prove. In some districts, no opening statement is made. The defense may decline to make an opening statement or defer opening until the completion of the government's case. Usually the prosecution will explain each count of the indictment and then outline the evidence to support it. Generally, where defense counsel elects to make an opening statement at the outset, the defense counsel will explain to the court and/or jury that the defendant need prove nothing, that the defendant's plea of not guilty is a denial of all the charges, and that the court and/or jury should keep an open mind until the entire case is presented.
### [9.6] 4.9 (07-15-1998) PRESENTATION OF CASE
The government goes first in presenting proof of the offenses charged. It does this by questioning witnesses and introducing documentary evidence. Upon conclusion of the direct examination of each witness by the United States Attorney, the witness is turned over to the defense counsel for cross-examination, if desired. After cross-examination, the government has the opportunity for redirect examination as to matters brought out on the cross-examination. Upon the conclusion of the government's case, the prosecution rests and the defendant then has the burden of going forward with the evidence. The prosecution may cross-examine defense witnesses, and after the defendant rests, may offer proof in rebuttal.
### [9.6] 4.9.1 (07-15-1998) Witnesses
A witness is a person who can testify as to what he or she knows from having heard, seen, or otherwise observed.
### [9.6] 4.9.1.1 (12-07-1999) Competence
The judge determines the competency of a witness to testify. A witness will ordinarily be presumed to have the mental capacity to testify. That capacity may be challenged in situations involving: Infants--the trial judge decides if the child is mature to make an intelligent statement of what he or she saw, heard, or observed; Mental derangement--an insane person usually will be permitted to testify if he or she understands the obligations of an oath and the consequences of lying, and can tell an intelligent story of what he or she saw take place; and Intoxication--the test as to a witness on the stand is whether he or she is capable of making an intelligent and truthful statement. In a Federal criminal case, a husband and wife are competent to testify for each other but not against each other without the consent of both, except where one spouse has committed some offense against the other, or the case involves polygamy or some other crime detrimental to the marital relationship. Generally, divorce removes the incompetency of husband and wife to testify against each other, except as to confidential communications made by one to the other during marriage. A convicted perjurer may testify and the jury must determine credibility. A defendant in the criminal case is a competent witness and his or her testimony must be judged in the same way as that of any other witness, with due regard for his or her personal interest in the outcome of the case.
### [9.6] 4.9.1.2 (12-07-1999) Credibility
The jury (or judge if a jury is waived) determines the weight and credibility of a witness' testimony. A witness is presumed to tell the truth. Credibility is judged by whether the witness had the capacity or opportunity to observe or be familiar with the subject matter of his or her testimony. Matters affecting credibility are the witness' interest, bias, prejudice, demeanor on the stand, prior inconsistent statements, prior mental derangement, intoxication at the time of the transaction to which he or she testifies, and prior convictions of a felony or a crime involving moral turpitude. If a witness gives contradictory testimony, the jury may accept the portion it believes and reject the remainder or may reject the witness' entire testimony if the witness has testified falsely as to a material point. If neither party will vouch for a witness, the court may call and question the witness and allow both sides the right of cross-examination and impeachment.
### Internal Revenue Manual | ### Hndbk. 9.6 Chap. 4 TRIAL | ### (07-15-1998)

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