Summary Witness, Exhibits and Nonexhibits

In United States v. McElroy, ___ F.3d ___ (1st Cir. 2009), the Court discusses summary evidence and charts. I am interested in this topic because of my participation in the massive KPMG related criminal trial, billed as the largest tax fraud case in history. The Government prosecuted 19 defendants involved in the creation and marketing of allegedly abusive tax shelters to many taxpayers over several years. For discovery, the prosecutors produced "over 22 million documents regarding the doings of scores of people." United States v. Stein, 541 F.3d 130, 157 (2d Cir. 2008). Before the court dismissed 13 of the defendants, the Government listed for trial 1987 “marked exhibits” with 39,000 pages and 3000+ so-called “compilation exhibits” with 89,000 pages. The prosecutors described the compilation exhibits as “tax returns, closing agreements and revenue agent reports relating to these [tax shelter] transactions." It was not entirely clear that the prosecutors were going to have those unmarked compilation exhibits formally admitted into evidence en masse (logistically, how exactly do you do that if they are not marked?). It was clear, though, that the prosecutors were going to offer a summary witness to testify as to the compilation exhibits but not submit the compilation exhibits to the jury. I think the principal focus of the summary testimony and charts (presumably there would be one or more) would have been to establish the tax due and owing element of the tax evasion charges in the case, as well as the object of the offense conspiracy charge and perhaps even the object of the Klein conspiracy charge. Before the pretrial skirmishing focused on evidentiary problems inherent in what the Government proposed to do, my client and 12 others were dismissed, so I am not sure what happened in the trial (4 eventually went to trial).
Read more »