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2009 NASAA Attorney/Investigator Training

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Attorney/Investigator Training ANALYZING EVIDENCE Randy McNeill, Deputy Director ... practice or course of business What are the elements of each violation? – PowerPoint PPT presentation

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Title: 2009 NASAA Attorney/Investigator Training


1
2009 NASAA Attorney/Investigator Training
  • ANALYZING EVIDENCE
  • Randy McNeill, Deputy Director
  • 334-242-2984, randy.mcneill_at_asc.alabama.gov
  • Martin Cordell, Enforcement Attorney
  • 360-902-8772, mcordell_at_dfi.wa.gov

2
ANALYZING EVIDENCE
  • How and what you should look for in reviewing
    your case in making a referral or drafting a
    pleading.
  • Using evidence to tell your story.

3
  • In evaluating the strength and weaknesses of
    your case or evidence, consider
  • What are the violations to be proved?
  • What are the elements of each violation?
  • What evidence supports each element of the
    violation?
  • What are potential evidentiary issues or
    objections?

4
  • What are the potential violations?
  • Typical violations
  • Sale of Unregistered Securities
  • Exemptions?
  • Unlicensed broker-dealer/salesperson
  • Fraud
  • Device, Scheme, Artifice
  • Misrepresentions
  • Omissions
  • Act, practice or course of business

5
  • What are the elements of each violation?
  • Conduct
  • Mental State

6
  • Jurisdictional Issues
  • Statute of Limitations
  • Subject Matter
  • Location of the violation

7
  • What evidence supports each element of the
    violation?
  • Types of Evidence
  • Testimonial
  • Documentary

8
  • Strength of Evidence
  • How Much Evidence Is Needed?
  • Corroborating Witnesses
  • Supporting Documents

9
  • Impact of Evidence?
  • Sympathetic Victims
  • Smoking Gun documents
  • Circumstantial Evidence

10
Evidence Analysis
  • How does this piece of evidence help?

11
Theory, Theory, Theory!!
  • First question that you must answer is, What is
    my theory in this case?

12
Questions to Ask in Forming Your Theory
  • What type of case is this?
  • What is the fraud?
  • Who are the investors?
  • What is the motivation of the defendant/respondent
    ?

13
Tell the Story
  • You should think of every document as a potential
    piece of evidence that will help you tell the
    story.

14
Key Questions
  • Does this piece of evidence help prove an element
    of the case?
  • Does it show relevant pattern or practice?
  • Can it be used against me, and if so what impact?
  • Are there evidentiary hurdles in getting the
    evidence admitted?
  • Does it create an unnecessary appellate issue?

15
Its not what you know. Its what you can prove!
16
Goal Make the Complex Simple
17
Evidentiary Issues
  • Authentication FRE Rule 901.
  • Best Evidence Rule FRE Rule 1002, et seq.
  • Hearsay FRE Rule 802, et seq.
  • Relevancy FRE Rule 402
  • Undue Prejudice FRE Rule 403
  • Other Acts FRE Rule 404

18
Twelve Banker Boxes to 38 Exhibits
Number Admit Description Witnesses
1. Letter to Circuit Clerk Morgan County Stephens
2A. Suspension Complaint Lusk
2B. Suspension Order Lusk
2C. Disbarment Complaint Lusk
2D. Disbarment Order Lusk
3A. Certified Conviction CC Certified
3B. Certified Conviction CC Certified
4. Bail Bond Act Self proving
5A. Certificate of Non-registration for Jailbusters Certified, Tolar
5B. Certificate of Non-registration for Butler Certified, Tolar
6. Buy/Sell Agreement Jailbusters Marshall County Roome
7. Promissory Note 1/22/03 Roome
8. Corporate Resolution Jailbusters Marshall County Roome
9. Articles of Incorporation Roome
10. Certificate of Deposit Jailbusters of Marshall County Roome
11. Business Signature Card Roome
12A-Q Marshall County Monthly Split Roome
13A-L Checks/Money Orders Roome
14. Lease Jailbusters Morgan County Roome
15. Minutes Addendum 6/6/04 Meeting Roome
19
Twelve Banker Boxes to 38 Exhibits
16. Termination Letter Roome
17. Notice of Default Roome
18. Buy Sell Agreement Jailbusters Cullman County Flinner
19. Promissory Note 1/27/03 Flinner
20. Corporate Resolution Flinner
21. Check 626 1/29/03 Flinner
22. Articles of Incorporation Flinner
23. Certificate of Deposit Jailbusters of Cullman County Flinner
24. Termination Letter Flinner
25. Buy Sell Agreement Jailbusters Walker County Parnell
26. Promissory Note 8/14/03 Parnell
Number Admit Description Witnesses
27. Check 6689 8/14/03 Parnell
28. Certificate of Deposit Jailbusters of Walker County Parnell
29A-H Checks to Butler or Parallax Parnell
30. Termination Letter Parnell
31. Notice of Default Parnell
32. Withdrawal of CD Jailbusters of Marshall County Custodian, Lewis
33. Withdrawal of CD Jailbusters of Cullman County Custodian, Lewis
34. Withdrawal of CD Jailbusters of Walker County Custodian, Lewis
35A- Bank Records Custodian, Lewis
36A- Certificates of Incorporation of Butler Related Companies Certified, Lewis
37. Flowchart Butler Related Companies Lewis
38. Timeline Lewis
20
Example
21
Sharp Instrument
22
GUILTY!
23
  • Summary
  • In analyzing the evidence in your case, prepare
    a list to ensure that you cover
  • Each violation to be proved,
  • Each element of the violation, and
  • Witness or documents supporting the violation
    of each element.

24
Summary
  • To tell your story effectively
  • Determine your theory of the case,
  • ID evidence that tells the story,
  • Keep it simple,
  • What are evidentiary issues?
  • Use a sharp instrument to obtain successul
    results.

25
  • Thank you.
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