Handbook 9.6
Trial and Court Related Activities
Chapter 4
TRIAL
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Contents
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The following sections cover Federal Court Procedures and Related Matters:
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Venue for Trial
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Provisions of the Constitution
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Provisions of the Federal Rules (Rule 23)
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Trial Jurors (Rule 24)
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Disability of Judge (Rule 25)
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Evidence (Rule 26) Taking of Testimony
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Opening Statements
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Presentation of Case
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Motion for Judgment of Acquittal (Rule 29)
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Rebuttal
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Instructions to Jury (Rule 30)
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Verdict (Rule 31)
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Judgment (Rules 32 Through 35)
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Right of Appeal
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Compromise of Criminal Tax Cases
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Responsibility and Conduct of Special Agent at Trial
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Separation of Witnesses
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Post-Trial
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Communication of Information Relevant for Sentencing Purposes to the Probation
Officer and the Assistant United States Attorney
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United States Tax Court
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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.
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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.
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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.
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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.
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Consider the following facts as a part of the evidence section to determine
venue:
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Residence address of the taxpayer at the time the alleged offense was committed.
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Principal business address of the taxpayer at the time the alleged offense
was committed.
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Place where the records were maintained, where the return was prepared, and
where the return was signed.
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If the return was mailed, the location of the post office.
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If the return was not mailed, the location of the IRS office that the return
was delivered.
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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.
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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.
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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. . .
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?"
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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The best evidence rule will not be invoked to exclude oral testimony of one
witness merely because another witness could give more conclusive testimony.
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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.
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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.
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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.
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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.
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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.
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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."
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[9.6]
4.7.3.4 (07-15-1998)
Admissibility of Specific Forms of Documentary Evidence
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Admissibility in the federal courts of various forms of documentary evidence
is covered in sections 1731 through 1745 of Title 28, United States Code.
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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."
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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.
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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.
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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.
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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.
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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."
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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.
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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.
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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.
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[9.6]
4.7.3.4.4 (09-01-1999)
Admissibility of Charts, Summaries and Schedules as Evidence
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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" .
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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.
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[9.6]
4.7.3.4.5 (07-15-1998)
Admissibility of Notes, Diaries, Workpapers, and Memorandums as Evidence
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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.
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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:
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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.
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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.
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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.
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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.
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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:
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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.
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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.
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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).
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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.
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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.
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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."
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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.
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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."
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The procedures for authentication of the above records are detailed in 28
U.S.C. Section 1738.
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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.
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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.
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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.
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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.
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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.
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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;
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the date;
-
who opened it;
-
who witnessed it;
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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.
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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.
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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.
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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.
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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.
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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.
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It is presumed that public officers perform their duties according to law
and do not exceed their authority.
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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.
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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.
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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."
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[9.6]
4.7.8 (12-07-1999)
Hearsay (Federal Rules of Evidence Article VIII)
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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.
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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.
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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:
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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.
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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.
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A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition or immediately thereafter.
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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.
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[9.6]
4.7.8.3.3 (07-15-1998)
Rule 803(3) Existing Mental, Emotional, or Physical Condition
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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.
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[9.6]
4.7.8.3.4 (07-15-1998)
Rule 803(4) Statements for Purposes of Medical Diagnosis or Treatment
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Statements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations.
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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.
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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.
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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.
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Market quotations, tabulations, lists, directories, or other published
compilations, generally used and relied upon by the public or by persons
in particular occupations.
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Reputation of a person's character among his associates or in the community.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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A witness is a person who can testify as to what he or she knows from having
heard, seen, or otherwise observed.
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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.
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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.
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Internal Revenue Manual
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Hndbk. 9.6 Chap. 4 TRIAL
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(07-15-1998)
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