New Rule Among Upcoming Changes to Federal Rules of Evidence

Effective December 1, 2024, there will be a new Federal Rule of Evidence 107, unless the U.S. Congress takes action to modify or reject this amendment and the other rule amendments discussed below, which is not likely. The text of the new rule is as follows:

(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.

In that regard, again effective December 1, 2024, Federal Rule of Evidence 1006 will be amended to make certain changes as follows:

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.

The Memorandum of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, dated May 10, 2023, describing the addition of Federal Rule of Evidence 107 and the revision to Federal Rule of Evidence 1006, is attached. The memorandum also discusses amendments to Rule 801(d)(2) and FRE 804(b)(3).

Practitioners should be aware of the new Rule 107 and the amendment to Federal Rule of Evidence 1006.

In the U.S. Supreme Court Order dated April 2, 2024, the Court stated that the foregoing amendments to the Federal Rules of Evidence shall take effect on December 1, 2024, “and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Therefore, practitioners should be aware of the revisions to these rules even regarding any pending cases they may have.