Submitting case reports to prosecutors

"...[T]o get the full attention of the prosecuting attorney, the examiner must have his case ready to present in an organized and clear package. A fraud examiner might have done a great job in developing evidence, but that information must be communicated effectively to the government, which must be convinced that the case is worth the time and effort necessary to pursue legal action against the wrongdoer." (2015 ACFE Fraud Examiners Manual, page 3.1039)

Much of our days are consumed with the meat-and-potatoes, real-time components of fraud examinations: taking reports; interviewing suspects, victims and witnesses; obtaining financial records, other pertinent documents and media; analyzing all of the information; and developing conclusions of possible criminal offenses. However, the mechanics of case file organization and submission to a prosecuting authority is almost as important as the facts and evidence gathered during the fraud examination.

Financial crimes are very time-intensive to investigate, review for a charging decision, charge and litigate. And the CFE who takes the time to assemble and present a clear, comprehensive and logically structured package to a prosecutor on the front end saves enormous amounts of time for herself and for the prosecutor down the road.

I'm directing this column toward those who examine fraud cases for criminal prosecution or who hope to do so at some point. (I presume that the reader has already had training and experience in criminal investigation.)

The nifty outline

One of the cornerstones of a well-prepared case file submission is its organization and an index or table of contents that precedes the evidence in the submission. Following is a suggested table of contents "starter kit," which the fraud examiner can use not only for her submission to the prosecutor but also to keep her case file organized during the investigation. Please feel free to plagiarize this outline by any means up to and including copy-and-paste and also add to or amend to taste.

Each case has its own peculiar DNA, and you will be called upon to add items to this table of contents depending on the evolution of the fraud examination.

1. Case summary (a detailed narrative about the case).
2. Allegations and initial impressions of potential offenses.
3. Police or other investigative-agency reports — both initial and continuation reports.
4. A complete inventory of all evidence obtained in the investigation and where and how this evidence is stored (more on that later).
5. Suspect identification.
6. Booking photos if suspect has been arrested.
7. Biography of suspect.
8. Photo of suspect.
9. Driving records of suspect.
10. Criminal history of suspect.
11. Civil filing history of suspect.
12. Witness list (more on that later).
13. Exhibit list (more on that later).
14. All applications for search warrants filed with the court.
15. All search warrants filed with the court.
16. Search warrant inventories and receipts filed with the court.
17. Subpoenas with all service information and notarized service affidavits.
18. Victim interviews — reports of interviews, transcripts of recordings and documents used in interviews.
19. Witness interviews — reports of interviews, transcripts of recordings and documents used in interviews.
20. Suspect interviews — reports of interviews, transcripts of recordings and documents used in interviews.
21. Bank records organized by bank, then by account holder, then by account number.
22. Credit card records organized by credit card company, then by account holder, then by account number.
23. Other financial institution documents organized by institution, then by account holder, then by account number.
24. Other documents (victim business records, defendant business records, real estate records, legal documents, handwritten documents, any and all documents pertinent to the case).
25. Investigator's financial analysis work product (spreadsheets in print format, link charts in print format, etc.).

This, my friends, is only the beginning. Each case has its own peculiar DNA, and you will be called upon to add items to this table of contents depending on the evolution of the fraud examination. The case might involve multiple suspects and/or multiple victims. Several crime schemes might be in play. Et cetera, et cetera. But this is a handy starting point to give you some structure. I've found that numeric identification of each of the table of content's sections is the simplest, and you can then use alphanumeric identifiers for subsections within the numbered sections if needed.

Notes on some of the outline items

Re: No. 4, "A complete inventory of all evidence obtained in the investigation and where and how this evidence is stored": It's absolutely critical that you notify the prosecutor about all evidence obtained in the fraud examination regardless of whether you feel it's relevant to the case.

Not only might the prosecutor feel that a piece of evidence is relevant but the prosecutor is also responsible for disclosing the existence of the evidence if the case is charged and the prosecutor can't disclose something of which she's unaware. Whether a piece of evidence of unclear relevance should be included in the physical case submission is something you can discuss with the prosecutor. However, again, you must make known the existence of all evidence.

Re: No. 7, "Witness list": This is a comprehensive list of all witnesses interviewed or identified for a case. It should include at a minimum the witness' first, middle and last names; date of birth; mailing address including city, state and ZIP code; telephone number/s; email address if possible; and the witness' connection to the case.

I italicized the words in the previous sentence because many reports and case submissions don't have complete witness contact information, which makes everything up to and including subpoenaing the witness for trial a whole lot of not fun. This is a nuts-and-bolts, practical column, and complete witness information is about as practical as it gets.

Re: No. 8, "Exhibit list": This can be a useful distillation of the evidence that's most strongly relevant to your case — pulled from all of the evidence obtained and provided to the prosecutor. It's helpful to identify each exhibit with a brief description, where and how it was obtained, and what information it contributes to the case. The exhibit list isn't meant to supplant the evidence inventory, but instead it highlights what the investigator believes to be relevant.

Re: Nos. 18-20, Victim/witness/suspect interviews: If the interviews are recorded, you should create reports of them and their transcripts. Reports can help distill the information obtained in the interview; transcripts can demonstrate verbatim the declarant's words.

You should also always produce the recordings (whether audio or video) at the time of the initial case submission. Defense attorneys routinely include in their demands for disclosure all media recordings of contacts with all parties related to the case; presenting these media at the time of the initial case submission saves the prosecutor time down the road by eliminating the need to ask for it.

Re: Nos. 22-25, Financial records and other documents: Yes, you should present all of these in their entirety as you obtained them from their respective institutions even if there's a morass of extraneous paper contained within them. I do recommend plucking out copies of salient documents from business records to place in the exhibit section. However, as with all other evidence, prosecutors are obliged to disclose to the defense all business records obtained — not just select documents.

It's critical that you copy all documents, place the originals in safekeeping and then give the copies to the prosecutor in the case submission. Also, it's critical that both the originals and the submitted copies do not have any mark-ups, notations, highlighting, or other alterations.

Case file submission: paper or electronic?

Yes. In our digitized world, imaged documents are now standard operating procedure. In legal practice, production of documents is increasingly done electronically, whether by investigator to litigator or litigator to litigator.

In my experience as a paralegal assigned to a financial crime prosecution team, I have found it most helpful when the investigator submits both a complete paper submission in a binder or binders — again including a detailed table of contents as its frontispiece — and discs or flash drives that contain the complete binder contents in PDF format and all other evidence in other formats (audio/video recordings, JPEG or TIFF photographs, analytical applications like Excel spreadsheets in native format, electronic content such as link charts, VISIO and PowerPoint files, etc.).

With dual-format case file submissions, the prosecutor then has her own paper copy to peruse and mark up, and the office has a complete electronic copy to store and to produce to the defense in discovery.

Front-loading with thoroughness

In my experience, case file organization is a vital part of investigation because it enables the investigator to start making connections in an ocean of evidence. Front-loading the presentation of the case with organized thoroughness makes the prosecutor's job much easier and can enhance the quality of the overall criminal case.

Annette Simmons-Brown, CFE, is the senior paralegal at the Hennepin County Attorney's Office in Minneapolis, Minnesota. Her email address is: Annette.Simmons-Brown@hennepin.us.