Trump evidence summary that omitted some phone call records is standard, not tampering, experts say
By Jeff Cercone
Donald Trump’s supporters claim the prosecution tampered with evidence in the former president’s criminal trial, following a courtroom exchange between a paralegal from Manhattan District Attorney Attorney Alvin Bragg’s office and a Trump attorney.
In May 10 testimony, Jaden Jarmel-Schneider, the paralegal, said under questioning from Trump defense attorney Emil Bove that some records of phone calls involving Michael Cohen — a former Trump lawyer turned prosecution witness — were omitted from a summary of calls presented as evidence in the business records case about hush money.
Trump faces 34 counts of falsifying business records to cover up a hush money payment to adult film actor Stormy Daniels before the 2016 presidential election. Daniels’ real name is Stephanie Clifford.
"Evidence tampering is a FELONY!" a May 13 X post partly said. "Alvin Bragg’s Office Deleted 3 pages of Phone Call Records of Michael Cohen (with) Stormy Daniels’ Lawyer!" The post linked to a May 11 Epoch Times article about the exchange.
Other social media posts, including from Trump’s son Donald Trump Jr. and conservative media outlets, seized on the courtroom exchange to accuse the prosecution of improperly handling evidence.
At issue is a summary of phone calls between Cohen and Keith Davidson, who formerly represented Daniels. The calls took place between Aug. 5, 2016, and Jan. 12, 2018, but the summary presented as evidence didn’t include every call. Another summary of calls between Davidson and former Daniels’ manager Gina Rodriguez also omitted some calls.
Legal experts told PolitiFact the prosecution did nothing wrong by omitting some calls from the summaries.
"It is very common" for prosecutors to submit as evidence a summary of records that omits some they don't deem relevant, as an aid to the jury, said Karen Friedman Agnifilo, a criminal defense attorney who worked at the Manhattan district attorney’s office before Bragg took office. "The judge will tell the jury this is what it is and what it is for. It is not considered tampering," Friedman Agnifilo said.
Evidence tampering, defined by federal law, is when a person "alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding or investigation."
Jarmel-Schneider told prosecutor Christopher Conroy in testimony that the calls cut from the summary are still in evidence in other places. We contacted Bragg’s office to ask where in the evidence they are located, but we received no reply.
Details of the courtroom exchange
Jarmel-Schneider agreed with Bove’s statement that the call summaries presented in court don’t list every call between the people named. "That would be tens of hundreds of thousands of calls," he said.
Bove asked Jarmel-Schneider whether exhibit 337 included every call between Cohen and Davidson, and the paralegal said, "We narrowed down by a time period."
Bove said about a page and a half of calls between Cohen and Davidson were omitted, but Jarmel-Schneider said he couldn’t confirm that number offhand. Later in the exchange, Bove said about three pages of calls between Davidson and Rodriguez were also cut from a summary exhibit, a number Jarmel-Schneider also couldn’t confirm offhand.
After Bove’s questioning, prosecutor Conroy asked Jarmel-Schneider whether all the calls, including those that were cut from the call summaries, were still in evidence in other places, to which he replied, "Yes."
Conroy then asked why they had been cut from the summaries.
"My understanding is that the decision was always going to be that we would admit the parts of the call summaries that were related to what came out in trial," Jarmel-Schneider said. "That’s the point of doing summary charts. We’re pretty far down the road now, so we made decisions about which parts of them to include."
Both the longer lists of calls and the later, shortened lists were each submitted to the defense, which did not object to them being submitted into evidence, Jarmel-Schneider testified.
The process of summarizing evidence
Frank Bowman, a University of Missouri law professor and former Denver local prosecutor and Florida federal prosecutor, said state and federal laws allow for summaries of evidence to be presented in court.
"When a witness is called to enter summary charts or similar evidence, the evidence is — by definition — summary," Bowman wrote in an email to PolitiFact. "It is not merely a repetition of all the evidence previously entered in other forms."
Federal Rule 1006 allows the use of summaries "to prove the content of voluminous writings" as long as the original content is available for either side to examine. A New York state rule on evidence contains similar language. The summary must be accurate and the opposing side can challenge its accuracy and seek to have it excluded from evidence.
We found no evidence — such as news reports or trial transcript remarks — that Trump’s attorneys have sought to exclude the call summaries from evidence.
"Sometimes a summary will merely reorganize previously admitted evidence in a more easily comprehensible way," Bowman said. "Sometimes it will highlight the points that the prosecution thinks are most relevant without including absolutely everything. There is nothing improper about either approach."
An X post said Bragg’s office "deleted 3 pages of phone call records of Michael Cohen with Stormy Daniels’ lawyer," which is evidence tampering.
Bragg’s office did not "delete" the phone call records. The records were omitted from a summary, which experts told us is standard. The summaries are not intended to be exhaustive.
Trump had the opportunity to challenge the summary’s accuracy and seek to have it excluded from evidence; we found no evidence — such as news reports or trial transcript remarks — that his attorneys have done so.
The call records in question are available elsewhere as part of the evidence.
We rate the claim False.
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