By Anthony J. Battaglia, U.S. District Judge
August 5, 2024
Using physical evidence with a witness is a commonplace practice. But under the December 1, 2024, amendments to the Federal Rules of Evidence, additional thought must occur in planning and presenting certain types of physical evidence. The drafters of the Federal Rules are also amending Rule 1006 in conjunction.
Of course, we have testimonial evidence, real evidence, documentary evidence, but the focus discussed here is what we have traditionally called “demonstrative evidence.” The drafters of the Federal Rules have added new Rule 107 to regulate the use of “illustrative aids” at trial—noting that “the distinction between ‘demonstrative evidence’ (admitted into evidence and used substantively to prove disputed issues at trial) and ‘illustrative aids’ (not admitted into evidence but used solely to assist the trier of fact in understanding other evidence) is sometimes a difficult one to draw and is a point of confusion in the courts.”[1]
So, here is the new Rule:
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.
The Advisory Committee Note states:
The term “illustrative aid” is used instead of the term “demonstrative evidence,” as that latter term has been subject to differing interpretations in the courts. An illustrative aid is any presentation offered not as evidence but rather to assist the trier of fact in understanding evidence or argument. “Demonstrative evidence” is a term better applied to substantive evidence offered to prove, by demonstration, a disputed fact.
Looking to common definitions of the words may be helpful here. “Illustrate” is a verb meaning, “to provide with visual features intended to explain or decorate.”[2] “Demonstrative” is an adjective meaning, “demonstrating as real or true” or “characterized or established by demonstration.”[3]
The case law on the formerly called Demonstrative Evidence has stated that demonstrative evidence contrasts from real evidence in that it has no probative value itself but is rather used as a pedagogical device to assist the jury in comprehending the testimony of a witness or other evidence. United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991). Summary witnesses may use charts and summary exhibits for demonstrative purposes if the proposing party lays a foundation, the opposing party has an opportunity to review the demonstrative exhibits and cross-examine the summary witness on these demonstrative exhibits, and the court gives a limiting instruction. United States v. Olano, 62 F.3d 1180, 1204 (9th Cir. 1995). The trial court should carefully examine the demonstrative evidence presented by a witness and determine that it is supported by proof before allowing its use as a visual aid. United States v. Soulard, 730 F.2d 1292, 1300 (9th Cir. 1984). Additionally, when demonstrative evidence is comprised of testimony or documents already admitted into evidence, the demonstrative evidence should be used merely as a visual aid and not as substantive evidence in jury deliberations. Wood, 943 F.2d at 1053. If the demonstrative evidence presented is not acting solely as a visual aid or summary of evidence already admitted, the trial court is afforded discretion on whether to allow demonstrative evidence into jury deliberations. See Fed. R. Evid. 611(a).
Going forward, courts are likely to consider the above stated authority as applicable in viewing and handling illustrative evidence under the mandate of Rule 107. Illustrative aids must not be provided to the jury during deliberations unless all parties consent, or the court, for good cause, orders otherwise. See Fed. R. Evid. 107(b).
So, what is the upshot of all this?
Writings, objects, charts, or other presentations that are used during the trial to provide information to the trier of fact will fall into two categories. The first category is evidence that is offered to prove a disputed fact; admissibility of such evidence is dependent upon satisfying the strictures of Rule 403, the hearsay rule, and other evidentiary screens. Usually, the jury is permitted to take this substantive evidence to the jury room during deliberations and use it to help determine the disputed facts. Fed. R. Evid. 107, Advisory Committee’s note to 2024 amendments. The second category is illustrative aids that contrast from evidence in that they have no probative value themselves, but rather, are used as pedagogical devices to assist the jury in comprehending the testimony of a witness or other evidence.
Finally, “demonstrative evidence” is a term better applied to substantive evidence offered to prove by demonstration. Wood, 943 F.2d at 1053. A myriad of examples happens every day in court, from photographs to accident reconstruction videos to out of court experiments. Again, as substantive evidence, admissibility of such evidence is dependent upon satisfying the strictures of Rule 403, the hearsay rule, and other evidentiary screens. The foundation for this evidence is often going to rest on the witness’s familiarity with the accuracy for photographs, or an expert’s familiarity with the subject matter, methodology, or apparatus used for simulation or recreation of the item, process, procedure, or event in question.
Confused? Indeed. In simple terms, if the writing, object, chart, or other presentations is illustrative, the foundation will be simply that it helps the jury comprehend the testimony or other evidence and is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or wasting time. If is intended as proof, it is demonstrative and subject to the admissibility requirements under the evidentiary rules.
Key in the new rule is that the parties can consent to the admission of illustrative aids, or the judge may allow admission for good cause. Another key point is that the illustrative aid must be entered in the record (e.g. given an exhibit number and memorialized or preserved as part of the record).
That takes us to Rule 1006, “Summaries to Prove Content.” As noted above, materials under Rule 107(d) are governed by Rule 1006, and not Rule 107, when it is substantive evidence. Rule 1006 will now provide that the summary, chart, or calculations offered to prove the content of voluminous admissible writings will be admitted as evidence “whether or not they [the writings] have been introduced into evidence.” The underlying documents must still be made available to other parties for examination, copying, or both. Keep in mind of course, that summaries, charts, or calculations that function only as illustrative aids fall under Rule 107.
The purpose of the Rule 1006 amendment is to correct misconceptions of the former rule. “Some courts have mistakenly held that a Rule 1006 summary is ‘not evidence’ and that it must be accompanied by limiting instructions cautioning against its substantive use.” Fed. R. Evid. 1006, Advisory Committee’s note to 2024 amendments. The purpose of Rule 1006, however, “is to permit an alternative proof of the content of writings, recordings, or photographs too voluminous to be conveniently examined in court.” Id. As such, the Rule “has been amended to clarify that a party may offer a Rule 1006 summary ‘as evidence.’” Id.
The other misconception courts have held is that the underlying voluminous materials must themselves be admitted into evidence before the 1006 summary may be used. They do not. Id.
As substantive evidence, admissibility of the Rule 1006 summary evidence is dependent upon satisfying the strictures of Rule 403, the hearsay rule, and other evidentiary screens. Rule 403 is always a consideration. If the summary is not an accurate reflection of the underlying information, is argumentative, or its probative value is substantially outweighed by the risk of unfair prejudice or confusion, then it should be rejected by the court.
Providing convenience and ease in comprehending voluminous information is the goal. The convenience to the parties is clear: the presentation of the evidence is quicker, and jury comprehension will benefit from the summary. Counsel can also allay concerns of prejudicial, irrelevant, or confusing information in the source documents, and the jury will not become bogged down in sifting through sometimes mountains of data.
[1] Report of the Advisory Committee on Evidence Rules (May 10, 2023), available at https://www.uscourts.gov/sites/default/files/advisory_committee_on_evidence_rules_-_may_2023_0.pdf.
[2] Illustrate, merriam-webster.com, https://www.merriam-webster.com/dictionary/illustrate (last visited July 25, 2024).
[3] Demonstrative, merriam-webster.com, https://www.merriam-webster.com/dictionary/demonstrative (last visited July 25, 2024).