Prosecutors in former President Donald Trump’s New York trial started with a bang, calling as their first witness David Pecker, the former publisher of the National Enquirer. And that makes sense. In a jury trial, the focuses are primacy and recency: Prosecutors want to start strong and end strong. The beginnings of trials and the ends of trials are what jurors remember best. That’s why a good strategy is to call witnesses such as Gary Farro to the stand in between.
The beginnings of trials and the ends of trials are what jurors remember best.
Farro spent 15 years at First Republic Bank as a senior managing director. He began his testimony last week as the third witness for the Manhattan district attorney’s office. Farro explained that he inherited the bank’s relationship with Michael Cohen, who had several personal accounts at the bank. He testified that Cohen contacted him in October 2016 to open a new account at First Republic for a real estate consulting LLC (limited liability company) that Cohen created called Essential Consultants LLC. Interestingly, according to Farro’s testimony, Cohen specified that he didn’t want an address to appear on any of the checks for that account. That Delaware LLC was the vehicle used to pay Stephanie Clifford, aka Stormy Daniels, the $130,000 hush money payment heard around the world.
During Farro’s testimony Friday, evidence including email messages and banking records were shown to the jury. While Farro certainly was called to testify about his personal recollections of his direct interactions with Cohen, he was, more important, called by the prosecution so it could establish him as the records custodian for that evidence. To get the relevant evidence admitted, the prosecution needed Farro to authenticate email addresses, client account records and other business records regularly generated, collected, reviewed and maintained by First Republic.
When watching a trial, you’ll often hear an attorney say, “Objection, your honor, hearsay!” Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. But hearsay evidence is usually inadmissible at trial. So to get hearsay, such as the contents of a business record, admitted into evidence, lawyers can use the business records exception. The idea behind this exception is that if a business regularly creates, uses and maintains these kinds of records in the normal course of its business, then those records are presumptively trustworthy. However, a lawyer can’t just announce that the business records hearsay exception applies; a lawyer must call a witness who can lay the proper foundation for this exception to get those documents admitted. In the Trump trial and for those First Republic records, that witness was Gary Farro.
Not all witnesses during this trial will be as blockbuster as Michael Cohen, Stormy Daniels or David Pecker. And who knows … maybe Trump, himself, will take the stand and testify in his own defense. For what it’s worth, though, records custodians are, in some ways, more important than the marquee names. Because if they aren’t called as witnesses and the proper foundation isn’t laid, then the evidence wouldn’t be admitted and wouldn’t be seen, heard or touched by the jury.
In this case, without the prosecution’s establishing Farro as the records custodian, jurors wouldn’t be able to see the checks made payable to Cohen reimbursing him for the hush money payment to Clifford (Daniels) that he fronted on behalf of Trump. They wouldn’t be able to see the records for the Essential Consultants LLC bank account created by Cohen. They wouldn’t be able to read the emails and texts between the central players in this case. They wouldn’t even be able to have them read aloud by the lawyers — because unless they’re admitted into evidence, the lawyers can’t read their contents to the jury. Don’t underestimate the less titillating but still incredibly important witnesses who will play key roles in this trial. Without them, prosecutors couldn’t make their case.
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