As I’ve noted here and also here, we now live in a “Pics or it Didn’t Happen” world. As such, if you are the SEC asking a jury to believe something, the jurors may reasonably expect you back it up with a recorded confession, surveillance video, evidence recovered from a hard drive, a “smoking gun” tweet or some other form of 21st century proof.
Although such evidence is increasingly available, sometimes the SEC is still forced to rely solely on circumstantial evidence, such as phone records and trading records. For example, the SEC may be able to show that a banker with inside information about a company that will soon be acquired telephoned someone, and then shortly thereafter that person bought stock in the company. Although this kind of circumstantial evidence is not nearly as compelling as a recorded confession, it can allow the SEC to prove a case if it is strong enough.
