An appropriately introspective trial attorney will often wonder, "Is the big picture clear?" or "Am I presenting the evidence well enough that the jury is with me?" This is particularly true in complex cases. At present, the Federal Rules of Evidence (Rules) do not provide many clear answers on the options available to a trial lawyer focused on solutions to such questions. While the Rules allow the attorney to "use a summary, chart, or calculation to prove the content of voluminous writing, recordings, or photographs that cannot be conveniently examined in court," the guidance largely stops there. Even for such summaries, there are disagreements about whether they are admissible as evidence. The Committee on Rules of Practice and Procedure's (Committee) proposed addition of FRE 107 and amendments to FRE 1006 seek to fill the gap, and while they are a good start, much is left unclear. The proposed amendments and addition of Rule 107 have been approved by the Judicial Conference and, if sent to Congress by May 1, 2024, absent congressional action, will become effective on Dec. 1, 2024.
The proposed addition of Rule 107 adds an entirely new rule, modeled after Maine Rule of Evidence 616, which states that "[t]he court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument." "Illustrative aid" is not defined in the proposed rule but is discussed in the Committee Note. The proposed rule would require that the aid's "utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time." Under the proposed rule, an illustrative aid cannot be provided to the jury during deliberations unless all parties consent or the court, for good cause, orders otherwise. The permissive nature of the proposed rule ("[t]he court may allow a party to present an illustrative aid") adds to the lack of certainty.
The Committee draws a distinction between an "illustrative aid" and "demonstrative evidence." According to the Committee, an illustrative aid is "offered not as evidence but rather to assist the trier of fact in understanding evidence or argument" and is not itself admissible as evidence. The Committee also states that such an exhibit is "offered for the narrow purpose of helping the trier of fact understand what is being communicated to them by the witness or party presenting evidence or argument." By contrast, demonstrative evidence is "substantive evidence offered to prove, by demonstration, a disputed fact" and is admissible as evidence.
This distinction between these two devices has serious significance. First, while illustrative aids are "not usually subject to discovery" according to the Committee, demonstrative evidence (as evidence) clearly would be. Second, while demonstrative evidence (as evidence) will be present in the jury room, that is not necessarily true for illustrative aids.
Consider also the "summary, chart, or calculation" envisioned by Rule 1006. The Committee's proposed amendments to Rule 1006 first clarify that the "court may admit as evidence a summary, chart, or calculation offered to prove the content of voluminous admissible writings, recordings, or photographs that cannot be conveniently examined in court[.]" The addition of the language is meant "to clarify that a party may offer a Rule 1006 summary 'as evidence.'" The proposed amendments also clarify that the summary may be admitted as evidence whether or not the underlying documents have been introduced into evidence. Next, the proposed amendments add a subsection (c) to Rule 1006, which states that "[a] summary, chart, or calculation that functions only as an illustrative aid is governed by Rule 107." The Committee thus perceives a difference between the summary of voluminous materials under Rule 1006, the illustrative aid under proposed Rule 107, and demonstrative evidence. But where do the lines lie?
An example demonstrates the ambiguity. Consider a hypothetical fraud and conspiracy trial where prosecutors seek to prove that five defendants conspired to defraud, and did defraud, a victim. The government's theory is that one defendant obtained the money through a shell company and it was later split among the five. The split, however, is not clear from any single bank statement. To piece together the puzzle, the government combed through hundreds of pages of bank records from dozens of accounts, which ultimately prove (they hope) that money made its way from the victim into each of the five defendants' personal bank accounts. The prosecutors ask themselves, "How can we make this picture clear?"
The prosecutors ask a forensic accountant to trace the money from the victim into each of the five defendants' bank accounts and create a "flow chart" showing how it happened. Arrows trace the money through the dozens of bank accounts and ultimately show large transfers to each defendant of one-fifth of the original fraud proceeds. What rule of evidence governs this flow chart?
Rule 1006 could govern. The flow chart, it could be argued, is meant to "prove the content of voluminous admissible writings, recordings, or photographs," i.e., hundreds of bank records, "that cannot be conveniently examined in court." In other words, the flow chart proves that the money moved through the stack of paper and into the defendants' hands. Assuming the intricacies of Rule 1006 are followed, the prosecutor might argue that this Rule applies because she wants the exhibit admitted into evidence and considered by the jury during its deliberations.
Or is it an illustrative aid under proposed Rule 107? The Committee's explanation states that illustrative aids are "any presentation offered not as evidence but rather to assist the trier of fact in understanding evidence or argument." The flow chart could be placed in this category as well if it is purportedly offered to help the jury make sense of the bank records. This approach would mean that it is not discoverable.
Finally, is it demonstrative evidence? The Committee states that "[d]emonstrative evidence is a term better applied to substantive evidence offered to prove, by demonstration, a disputed fact." In our example, the flow chart could be offered to prove each defendants' connection to the conspiracy by "demonstrating" that money (though fungible) left the victim as a certain amount and made its way into the defendants' bank accounts as one-fifth shares of that amount. To add to that, the government would likely argue that the bogus transfers through dozens of bank accounts clearly demonstrate that the defendants were conscious of their guilt.
All this is to demonstrate (illustrate? summarize?) that the appropriate use of illustrative aids, demonstrative evidence, and summaries of voluminous materials remains unclear. It may be that much will depend on the purpose for which the exhibit is offered and that strong limiting instructions will be necessary where such purpose is merely to help the trier of fact understand the evidence but not to prove any fact. It may also be that the proposed Rule 107's limitation that the "aid's utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice" or "misleading the jury" serves a critical role in policing the overuse of claimed illustrative aids and requires that they fall under demonstrative evidence or summaries of voluminous materials when they cross the line. Without a definition for "illustrative aid," trial attorneys must carefully account for the possibility that their attempt to make the big picture clear could fall under each of these three devices.
Originally published by Law.com
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