July 18, 2012 Articles

Summaries May Help, but Must Still Meet Rules 611(a), 1006

Parties should not be allowed to enter into evidence case summaries or compilations of evidence tantamount to a written closing statement under the guise of Rule 1006.

By James "Marty" Truss

Virtually every trial would be much easier, quicker, and less expensive if a party could dispense with the formality of offering numerous pieces of evidence through multiple witnesses in favor of a single comprehensive “summary” document compiling only the most salient excerpts from the vast fruits of the discovery process. In this way, the party could present its entire case in a summary fashion through one key witness and, if allowed by the court, use slanted descriptions of the compiled data to present a virtual closing argument from the witness stand. Because the data compiled during discovery in much civil litigation amounts to an unwieldy mass of voluminous writings and other physical evidence, trial lawyers are occasionally tempted to skirt various rules of evidence by disguising written closing arguments or narrative witness scripts as summaries of voluminous materials under Federal Rule of Evidence 1006.

A Rule of Convenience
Summaries, charts, graphs and calculations can often provide a more efficient and, in some cases, the only practicable method of introducing voluminous evidence. A proponent attempting to prove the contents of writings, recordings, or photographs must ordinarily offer into evidence the original, a requirement widely known as the best-evidence rule. See Fed. R. Evid. 1002. Rule 1006 provides a useful exception to the best-evidence rule, however, when the introduction of the original writings, recordings, or photographs would be inconvenient or unwieldy. The rule is a codification of the common-law practice of allowing summaries of voluminous materials under certain circumstances.

Amended effective December 1, 2011, as part of the recent re-styling of the rules to make them more easily understood, Rule 1006, entitled “Summaries to Prove Content,” provides:

 

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the 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.

 

On its face, Rule 1006 is a straightforward rule of convenience designed to avoid the cumbersome task of sifting through reams of paper or enduring countless hours of recordings to extract a small amount of probative evidence. Despite its apparent simplicity, courts regularly grapple with the potential confusion of proper Rule 1006 summaries and other sorts of strictly demonstrative or pedagogical summaries.

Along with the economic burn rate of spending a day in trial, the steady increase in the amount of electronic evidence adds systemic pressure to the trial process, tempting counsel to introduce summaries of voluminous data whenever feasible. When combined in the cauldron of zealous advocacy, these factors have led some trial lawyers to generate exhibits more akin to written closing arguments than to the summaries of voluminous writings contemplated by Rule 1006. Cobbling together excerpts from various disparate writings, photographs, and recordings into a comprehensive narrative script, the most aggressive practitioners masquerade compilations of the entire case as Rule 1006 summaries, pushing the outer limits for demonstrative exhibits with overly slanted inferences and interpretive descriptions of the assembled materials. These sorts of case road maps, scripts, or written closing arguments are not the types of convenience-based summaries properly within the scope of Rule 1006.

Summaries Admissible in Evidence under Rule 1006
There is some conflict regarding whether Rule 1006 allows summaries of evidence already presented to the jury or if is instead limited to summaries of voluminous evidence not otherwise admitted. Compare United States v. Bishop, 264 F.3d 535, 547–48 (5th Cir. 2001) (allowing a Rule 1006 summary of evidence already presented to the jury), with United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003) (distinguishing Rule 1006 summaries of voluminous material not otherwise admitted from demonstrative aids summarizing admitted evidence). A plain reading of the rule, however, indicates that Rule 1006 summaries should generally (or at least principally) only include evidence not otherwise admitted. Allowing the use of a summary of already admitted evidence would, in effect, allow a proponent to potentially repeat its entire case shortly before deliberations to the jury. See United States v. Whitfield, 590 F.3d 325, 364 (5th Cir. 2009) (court should avoid the use of a summary of previously admitted evidence to simply repeat entire case shortly before jury deliberations).

Using Rule 1006 as a basis to admit summaries of already admitted evidence also ignores the reasoning behind the rule in the first instance. The rule is designed to avoid having to introduce certain voluminous writings by allowing the introduction of a summary as proof of the content of voluminous writings where those writings “cannot be conveniently examined.” See United States v. Janati, 374, 396 (4th Cir. 2004) (The “purpose of this Rule is to reduce the volume of written documents that are entered into evidence.”). It is the voluminous nature of documents that cannot otherwise be presented to a court that justifies the use of Rule 1006.

Under Rule 1006, the summary itself is the evidence admitted as proof of the content of the writings or other material summarized. Thus, for a Rule 1006 summary of evidence to be admissible, the materials underlying that summary must also be admissible. See, e.g., United States v. Oros, 578 F.3d 703, 708 (7th Cir. 2009); United States v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998). Because Rule 1006 is not an exception to the hearsay rule, the underlying voluminous writings must themselves fall within some exception to the hearsay rule. See Soden v. Freightliner Corp., 714 F.2d 498, 506 (5th Cir. 1983). While the underlying documents need not be offered into evidence—and, considering the purpose of the rule, generally should not be offered into evidence—they must be produced or made available to the other parties at a reasonable time before the summary is offered into evidence. Fed. R. Evid. 1006. The trial court can also require that the materials be produced in court so that the accuracy of the summary can be tested.

Rule 1006 summaries can be powerful devices. Because a Rule 1006 summary is admitted as surrogate of the underlying voluminous evidence, the jury is allowed to take the summary into deliberations and base a verdict on it. Courts generally take care to ensure that Rule 1006 summaries are not used to carry argumentative matter, attorney comments, or conclusory statements into the jury room. In United States v. Smyth, the Fifth Circuit noted that because “summaries are elevated under Rule 1006 to the position of evidence, care must be taken to omit argumentative matter in their preparation.” 556 F.2d 1179, 1184 n. 12 (5th Cir. 1977). The rule is not a back-door vehicle for the admission of evidence that is otherwise inadmissible because it is irrelevant, misleading, inauthentic, hearsay, or otherwise prejudicial. Other courts have cautioned against allowing parties to use Rule 1006 summaries to repeat their entire case to the jury right before closing arguments. See Whitfield, 590 F.3d at 364.

Although the particular requirements for admissibility of a Rule 1006 chart or summary vary somewhat by circuit, the following elements include the requirements most commonly imposed:

 

To be admissible, a chart must summarize documents so voluminous “as to make comprehension ‘difficult and . . . inconvenient,’” although not necessarily “literally impossible”; the documents themselves must be admissible, although the offering party need not actually enter them; the party introducing the chart must make the underlying documents reasonably available for inspection and copying; and the chart must be “accurate and nonprejudicial.” In addition, as part of the foundation for a chart, the witness who prepared the chart should introduce it.

 

United States v. Hemphill, 514 F.3d 1350, 1359 (D.C. Cir. 2008) (quoting Bray, 139 F.3d at 1109–10). Although not strictly necessary in many jurisdictions, prudent practice dictates the use of a sponsoring witness who personally prepared or oversaw preparation of the summary.

Useful Summaries Are Not Admissible under Rule 1006
In contrast to a Rule 1006 summary, pedagogical or strictly demonstrative summaries are generally not admitted into evidence, but they can be extremely effective in communicating complex or voluminous information to the jury. Demonstrative summaries are generally more widely used, most frequently with expert witnesses and in closing arguments. Because they are primarily tools of persuasion rather than tools of convenience, demonstrative summaries may contain excerpts of key evidence already admitted at trial, along with inferences and conclusions from the evidence when used to illustrate the testimony of an expert witness.

The use of demonstrative summaries and charts is regulated by Federal Rule of Evidence 611(a), which describes the trial court’s authority and responsibility to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence.” Such pedagogical devices can and commonly do draw on an expert witness’s ability under Rules 702, 703, and 705 to summarize data, including material otherwise inadmissible in evidence, on which the expert bases his or her opinion. In addition to the convenience of presenting a condensed summary of voluminous materials, the demonstrative summary is valuable as a method of organizing and highlighting key pieces of evidence and allowing an opinion witness to draw inferences and conclusions from the summary.

While the rules for use of demonstrative summaries are not as strict as those governing the admission of Rule 1006 evidentiary summaries, the trial court should nonetheless guard against the use of demonstrative summaries that are mere vehicles for counsel’s argument, unwarranted inferences, or misleading repackaging of the evidentiary record. Even when a demonstrative summary is otherwise accurate, nonprejudicial, and prepared with Rules 611, 702, 703, and 705 in mind, courts frequently employ instructions to ensure that it is not considered by the jury as substantive evidence.

The following is a suggested jury instruction for a situation in which a demonstrative summary was used at trial but not admitted into evidence:

 

Throughout various points of this trial, you have seen counsel for [party] use [chart, summary, etc.] to assist in the presentation of the witnesses and your understanding of the evidence I have admitted into the evidentiary record. This material is not itself evidence and must not be considered by you as proof of any facts the [chart, summary, etc.] contains.

 

For situations in which a true Rule 1006 summary has been admitted by the trial court in addition to the use of strictly demonstrative summaries, the following instruction can be added to distinguish their relative import:

 

During trial, you have also seen counsel for [party] use [Rule 1006 summary] to present [voluminous material] in condensed form for convenience of avoiding the introduction into evidence of [voluminous material]. This summary was admitted by me into the evidentiary record and may therefore be considered by you along with the other evidence admitted in this trial.

 

When used properly with appropriate control from the trial court under Rules 611(a) and 1006, both pedagogical summaries and true Rule 1006 “convenience summaries” can be very helpful in streamlining the presentation of a case and in educating and persuading the jury. However, aspirations of efficiency and judicial economy should not yield to the rules of evidence such that parties are permitted to enter into evidence case summaries or compilations of evidence tantamount to a written closing statement under the guise of Rule 1006.

Keywords: litigation, business torts, evidence, summaries, Federal Rules of Evidence

James "Marty" Truss – July 18, 2012