Barring a surprise, effective December 1, 2024, new Rule 107 becomes part of the Federal Rules of Evidence. It’s text is:
Rule 107. Illustrative Aids(a) Permitted Uses. The court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument if 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.
(b) Use in Jury Deliberations. An illustrative aid is not evidence and must not be provided to the jury during deliberations unless:(1) all parties consent; or(2) the court, for good cause, orders otherwise.
(c) Record. When practicable, an illustrative aid used at trial must be entered into the record.
(d) Summaries of Voluminous Materials Admitted as Evidence. A summary, chart, or calculation admitted as evidence to prove the content of voluminous admissible evidence is governed by Rule 1006.
On December 1, 2024, Rule 1006 will be amended to make the following changes (with deletions struck through and new material italicized):
Rule 1006. Summaries to Prove Content(a) Summaries of Voluminous Materials Admissible as Evidence. The proponent court may admit as evidence use a summary, chart, or calculation offered to prove the content of voluminous admissible writings, recordings, or photographs that cannot be conveniently examined in court, whether or not they have been introduced into evidence.
(b) Procedures. The proponent must make the underlying originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
(c) Illustrative Aids Not Covered. A summary, chart, or calculation that functions only as an illustrative aid is governed by Rule 107.
Rule 107 and amended Rule 1006 were drafted by the Advisory Committee on the Federal Rules of Evidence to eliminate some of the confusion that existed in federal cases concerning the admissibility and proper use of exhibits admitted as (a) substantive evidence or (b) exhibits used for illustrative, demonstrative, or pedagogical purposes. Exhibits admitted as substantive evidence must meet the standards for admissible evidence, including relevance, and might be excluded under Rule 403 as unfairly prejudicial. Exhibits used for illustrative, demonstrative, or pedagogical purposes are not “evidence” and need not comply with ordinary evidence rules, but they may not be used at all if a trial judge decides not to permit them. Federal decisions tended to treat exhibits admitted as substantive evidence as being admitted under Rule 1006, and exhibits used for illustrative, demonstrative, or pedagogical purposes as being permitted pursuant to Rule 611(a). But the decisions were not always clear as to the proper use of the two kinds of exhibits.
For example, United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980), declared that the “better practice” is not to allow illustrative aids during jury deliberations but that the trial court has discretion to permit them, whereas Baugh ex rel. Baugh v. Cuprum S.A. de C.V., 730 F.3d 701, 703 (7th Cir. 2013), held that it is reversible error to send an illustrative aid to the jury during deliberations. Most courts have recognized that Rule 1006 summaries of voluminous evidence that cannot be conveniently examined in trial are substantive evidence. Indeed, the requirement for a Rule 1006 summary is that the underlying documents that are summarized must themselves be admissible. Yet, there are decisions rejecting these summaries as “evidence.” In United States v. Bailey, 973 F.3d 548, 567 (6th Cir. 2020), the Sixth Circuit declared that a Rule 1006 “summary should be accompanied by a limiting instruction which informs the jury of the summary’s purpose and that it does not constitute evidence.”
New Rule 107 and amended Rule 1006 should go a long way to making clear the difference between types of exhibits and their proper use. Rule 107 clarifies that
The amendment to Rule 1006 clarifies that
Questions will still arise about the proper use of exhibits: Perhaps the most important is what distinguishes substantive and illustrative summaries.
United States v. Ortiz-Orellana, 90 F.4th 689 (4th Cir. 2024), addresses this question without actually answering it. Two defendants were convicted of RICO conspiracy, murder in aid of racketeering, murders, and other crimes related to their participation in MS-13. An FBI agent prepared three summary charts that listed cell phone calls to and from various phone numbers, including those of the defendants. The charts summarized evidence previously admitted. The government intended to use the charts to map out the locations of the defendants during each murder. The defendants objected to admission of the charts, and the trial judge court (a) directed the government to remove the defendants’ names from the charts while allowing the summaries to show location data and (b) ruled that the government could use the names associated with the phones during closing argument based on independent evidence establishing those facts.
Later, the judge ruled that under Rule 1006, the charts would not be admitted into evidence, but the government could use the charts to summarize previously admitted cellular record evidence. Before the agent testified using the charts regarding subscriber information and location data from cellular records, the judge instructed the jury that the charts were not admitted into evidence but were merely an “illustrative aid” to assist the jury in understanding the evidence, the charts were “no better than the independently admitted evidence,” and the jury should not give them greater consideration than the admitted evidence because the charts did not constitute “independent evidence.” The judge also instructed the jury to consider the charts only “if they were of assistance to you in analyzing the evidence and understanding the evidence.”
The court of appeals held that the trial judge did not abuse discretion in the evidence rulings, discussed Rules 611 and 1006, and noted that its precedents provide (1) when summary charts are admitted to facilitate the comprehension of evidence in the record, a court should provide a limiting instruction to ensure that the jury does not rely on that chart as independent evidence; and (2) when summary charts are admitted as a surrogate for admissible voluminous records no limiting instruction is required.
The court of appeals stated that the defendants did not request, and the trial judge did not give, a limiting instruction as to the charts. This is surely debatable, since the various cautions given by the judge seemed to convey a message that the jury should not consider the charts as independent evidence. In any event, the court declined to find plain error. The court never decided whether the three charts were admissible under Rule 1006; it simply mentioned that the trial judge referred to Rule 1006 and said that the charts would not be admitted. Were the charts admissible under Rule 1006? The correct is “yes” to the extent that the charts did no more than identify information in other documents previously admitted and “no” to the extent that the testifying FBI agent was summarizing testimony as well as the contents of previously admitted documents in order to tie the contents of the records to the defendants and the charged offenses. The reason for the different treatment of the charts is that Rule 1006 focuses on voluminous writings, recordings, or photographs that cannot be conveniently examined in court. To the extent that the agent sought to rely on testimony to tie the defendants to the contents of exhibits, he was going beyond what Rule 1006 permits. But a summary exhibit that relied on both documents and testimony could be used under Rule 611(a) and Rule 107 when it takes effect.
Why did the trial judge bar the agent from using the defendants’ names when testifying about the charts? Neither the judge nor the court of appeals explained. But a likely answer is that the judge was aware that detailed summary charts can be used to have a witness like the FBI agent essentially preview the prosecutor’s closing argument, and the judge thought that fairness required that tying the phone calls to the defendants should be confined to the real closing argument that the prosecutor would later give.
