2009 NASAA Attorney/Investigator Training

1. 2009 NASAA Attorney/Investigator Training ANALYZING EVIDENCE • Randy McNeill, Deputy Director • 334-242-2984, randy.mcneill@asc.alabama.gov • Martin Cordell, Enforcement Attorney: • 360-902-8772, mcordell@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. It’s not what you know. It’s 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

19. Twelve Banker Boxes to 38 Exhibits

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.