Proper Use Of An IRS Summary Witness In A Tax Prosecution

First Circuit considers whether the use of an IRS summary witness was improper and concludes that the testimony was proper since it was based on admissible evidence, helped “analyze facts already introduced into evidence” and did not “directly address the ultimate question” in the case, in United States v. Ulloa, _ F.3d _ (1st Cir. July 28, 2014) (No. 13-1577)

As previously noted in the Federal Evidence Blog, there are risks in using a summary witness who may deviate in his or her testimony from discussing admissible evidence. See, e.g., D.C. Circuit Cautions On The "Serious Risk" Of Using Summary Witnesses. The First Circuit recently considered a challenge to a summary witness testimony in a criminal tax prosecution and noted that the summary witness was properly used.

Trial Court Proceedings: Summary Agent Testimony

Defendant Ulloa was prosecuted of ten counts of submitting fraudulent federal tax returns. At her trial, an Internal Revenue Service (“IRS”) agent provided summary testimony about the circumstances in which certain “taxpayers each paid a portion of their IRS refund money to” the defendant. The trial court denied the defendant’s motion to strike the testimony as impermissible since the testimony was “beyond the scope of a summary witness” since it was not based on the personal knowledge of the agent. The jury convicted the defendant. On appeal, she challenged the admission of the summary testimony as based on a lack of personal knowledge and hearsay.

First Circuit Review: Considering The Role Of The Testimony

The First Circuit affirmed the admission of the summary witness testimony. The circuit noted that the summary testimony was properly used:

This court has found in the past that allowing an IRS agent to testify summarily is useful in tax cases as long as the testimony “does no more than analyze facts already introduced into evidence” and “the witness does not directly address the ultimate question” in the case. See United States v. Stierhoff, 549 F.3d 19, 28 (1st Cir. 2008)(tax evasion). Agent Mitchell’s testimony fits within the confines of that rule. The jury heard the same testimony from the taxpayers themselves. [IRS] Agent Mitchell merely summarized the money trail for each fraudulent refund, using the taxpayers’ own testimony. Ms. Ulloa has not raised, and nothing in the record demonstrates, that Agent Mitchell expressed an opinion on whether
Ms. Ulloa intended to file false tax returns. See id. This point of error is rejected.

Ulloa, _ F.3d at _.


The Ulloa case provides an example of the proper use of summary witness testimony. The testimony was helpful to the jury in understanding the evidence and did not stray into areas in which were inadmissible. For an earlier case in which the First Circuit was critical of the related overview testimony, see First Circuit Renews Criticism On The Use Of Agent Overview Testimony.


Photo Description: First Circuit Court of Appeals, John Joseph Moakley United States Courthouse, Boston, Massachusetts. Learn more about the courthouse.


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