DEMONSTRATIVE EVIDENCE UNDER THE RULES: THE ADMISSABLE AND INADMISSABLE

DEMONSTRATIVE EVIDENCE UNDER THE RULES: THE ADMISSABLE AND INADMISSABLE Related People Allen W. Hinderaker Ian G. McFarland 6/23/15 By Allen Hinderaker & Ian McFarland INTRODUCTION Demonstrative evidence is a singularly important tool to persuasion. Visual communication is more effective than verbal, as measured by the fact we remember significantly more of what we see as compared to what we hear. The power of demonstrative evidence to persuade underscores the critical importance that the demonstrative exhibit to fairly and accurately depict the underlying information. Demonstrative exhibits, which are the creation of the parties, must be carefully crafted and carefully reviewed to ensure a fair presentation of the WHAT IS DEMONSTRATIVE EVIDENCE? Demonstrative exhibits take two forms under the Rules of Evidence. In one form, the demonstrative exhibit is substitute evidence admitted in lieu of actual Sometimes characterized as summary exhibits, this form of demonstrative evidence has no independent existence; it is a derivative embodiment of independently existing The purpose of the evidence, rather than its form, distinguishes demonstrative evidence from other types of Charts, graphs, maps, diagrams, photographs, videos, models, experiments, computer animations, and simulations have all been recognized as forms of summary forms of demonstrative Judges and counsel must be vigilant in vetting that which is substituted to ensure that the demonstrative is not used as a means to introduce otherwise inadmissible material. The purpose of the summary exhibit, of course, is to more persuasively present the evidence of the case. The second form is pedagogical summaries. This form of demonstrative evidence facilitates the presentation of evidence or helps explain the evidence already in the record. Unlike substitute evidence, a pedagogical summary is not an alternative to actual evidence and does not constitute substantive The only purpose is persuasion: to more effectively present or explain the

RULES OF EVIDENCE PROVIDING FOR USE OF DEMONSTRATIVE EVIDENCE Federal Rules of Evidence 611 and 1006 are the only rules specifically targeting the admission of demonstrative exhibits. Nonsubstitute or pedagogical summaries are admitted under Rule 611, which affords the courts control over the mode [of] presenting Fed. R. Evid. 611. Because pedagogical summaries are not substantive evidence, courts are often willing to allow a party more discretion in presenting its unilateral view of the evidence: For instance, such exhibits may include witnesses conclusions or opinions or reveal inferences drawn in a way that would assist the jury. United States v. White, 737 F.3d 1121, 1135 (7th Cir. 2013). But, this more argumentative use should be accompanied by clear instruction that the summary exhibit is not actual See id. Pedagogical summaries are excluded from the jury room. See id. at 1136. Summary exhibits under Rule 1006 can be substituted for actual evidence to prove the content of voluminous writings that cannot be conveniently examined in court. Fed. R. Evid. 1006. Under this rule, a proponent of a summary exhibit must satisfy four elements for admission: (1) the summarized material must be "voluminous" and not conveniently subject to examination in court; (2) the summary or chart must be an accurate compilation of the voluminous records; (3) the records summarized must be otherwise admissible into evidence; and (4) the underlying documents must be made available to the opposing party for examination and copying. United States v. Tsoa, 2013 U.S. Dist. LEXIS 165895, *11 (E.D. Va. Nov. 20, 2013) (citing United States v. Janati, 374 F.2d 263, 272 (4th Cir. 2004)). Rarely do the formal requirements of Rule 1006 present a barrier for admission. For instance, in United States v. White, 737 F.3d 1121 (7th Cir. 2013), four bankers boxes worth of mortgage transaction documents were sufficiently voluminous to warrant a summary exhibit. Courts have also equated a case s complexity with volume: The complexity and length of the case as well as the number of witnesses and exhibits is also considered in determining whether summary evidence is appropriate. Tsoa, 2013 U.S. Dist. LEXIS 165895, at *12 (internal quotations omitted). In Tsoa, the court admitted a summary exhibit under Rule 1006 of underlying records totaling less than 100 pages, noting that while the volume of material is not overwhelming, the evidence is certainly complex. Id. The requirement to make the underlying records available at a reasonable time and place has been satisfied when the prosecution produced the records just three days before trial. United States v. Isaacs, 593 F.3d 517, 527-28 (7th Cir. 2010); see also Valjean Mfg. v. Michael Werdiger, Inc., 2007 U.S. App. LEXIS 20475, *4 (2d Cir. Aug. 27, 2007) (affirming trial court s admission of summary based on underlying records produced just one week before trial). Conversely, if the underlying records are never produced or made available, the summary of those records should be excluded. See Powell v. Penhollow, 260 Fed. Appx. 683, 688 (5th Cir. 2007). Curiously, Rule 1006 does not mandate the production of the summary itself before trial. See Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17, 30 (1st Cir. 2011) ( Rule 1006 provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party. ). But, most courts and commentators recognize that the spirit of the rule would be thwarted by not providing the summaries before trial because, without notice of the summaries' contents, adverse parties cannot know what to look for in the source material to determine if the summaries are accurate. United States v. Dukes, 242 Fed. Appx. 37, 50 (4th Cir. 2007) (quoting C.A. Wright & V.J. Gold, 31 Federal Practice and Procedure 8045, at 549 (2000)).

RELATIONSHIP TO OTHER RULES OF EVIDENCE Like all other evidence, demonstrative evidence must also satisfy the threshold mandates of Rules 401 403, must avoid improper hearsay or satisfy an exception, must be properly authenticated, must be based on personal knowledge of the testifying witness, and must pass the criteria in Rules 701 or 702, to the extent it includes opinion testimony. (1) Relevance & Prejudice Demonstrative evidence must be relevant under Rules 401 and 402. It must be helpful to the factfinder and have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the Fed. R. Evid. 401. A summary exhibit consisting of a list of article titles was ruled inadmissible as irrelevant to the purported causal relationship between an estrogen drug and cancer in Needham v. White Laboratories, Inc., 639 F.2d 394 (7th Cir. 1981). The Seventh Circuit affirmed the district court s ruling and observed that one should not assume that titles are an accurate summation of article contents. Id. at 403. In addition to relevance concerns, demonstrative evidence must also possess a probative value that is not substantially outweighed by the dangers of unfair prejudice, issue confusion, misleading the jury, undue delay, waste of time, or needless duplicity. Fed. R. Evid. 403. Rule 403 s fairness requirement is a popular battleground for admission of demonstrative Demonstrative exhibits that summarize underlying objective facts are rarely excluded based on fairness concerns. In United States v. Chhibber, 741 F.3d 852 (7th Cir. 2014), the district court s admission of four summary charts of defendant s medical records was affirmed: [T]he charts accurately portrayed the data culled from his records, and were not misrepresented to the jury as anything other than what they actually were. Id. at 856. Similarly, another representative summary chart was properly admitted where it simply catalogued instances of objective characteristics and added those instances together to create totals. White, 737 F.3d at 1136. Important to the superior court s analysis was that the trial court forbade the proponent to explain the exhibit s significance to the jury or suggest inferences to draw from it. Id. On the other hand, video animation demonstrative evidence possesses a greater likelihood of having an undue impact on the jury. Recognizing the potential danger of a jury confusing the animation with reality and the challenge in limiting those impressions, the Tenth Circuit warned that courts should carefully and meticulously examine proposed animation evidence to ensure that it is truly relevant and not unduly prejudicial. Robinson v. Missouri Pacific R. Co., 16 F.3d 1083 (10th Cir. 1994). The First Circuit addressed the issue of fairness when considering the trial court s refusal to admit a videotape recreation of a traffic accident and adopted the solution that such evidence call[s] for substantial similarity in conditions. Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993). The appellate court afforded the district judge wide discretion in evaluating the similarity of conditions and affirmed the exclusion of the exhibit because it was rife with the risk of misunderstanding. Id. The portrayal of numerical data in visually impactful ways creates significant risk for distorting the Physical representations of numerical values should have relative proportions that are commensurate with those values. The use of multiple dimensions and vanishing point perspectives, by nature, distort numerical information. Likewise, the use of inconsistent and irregular scales suggests the existence of patterns or relationships that are absent in the underlying data. By the same token, the use of demonstrative exhibits to show a change in the value of money over a period of greater than one year should reflect realities of inflation. David S. Davis, Layne W. Hastings, and Bryan G. Harston discuss each of these scenarios, and more, in greater detail in their article, Drawing a Fine Ethical Line, The National Law Journal (August 7, 2000).

(2) Hearsay A demonstrative summary exhibit cannot summarize or include inadmissible hearsay. Even where only portions of the underlying source material constitute improper hearsay, those defects may be imputed to the summary exhibit as a whole. See Wright & Gold, 31 Federal Practice and Procedure 8043, at 527. A proposed summary exhibit that listed trade secrets allegedly disclosed to the defendant was ruled to be improperly admitted in Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154 (11th Cir. 2004). The district judge s admission of that exhibit was an abuse of discretion because it constituted improper hearsay. Of course, the hearsay exceptions contained in Rules 803 804 are equally applicable when dealing with demonstrative exhibits. See e.g., United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999). ( The obligation of establishing the applicability of a hearsay exception for [summarized] records falls upon the government as the proponent of the ). The business records hearsay exception found in Rule 803(6) is frequently applied to admit summaries of voluminous business records. A summary of the plaintiff s damages was admitted in State Office Systems, Inc. v. Olivetti Corp. of America, 762 F.2d 843 (10th Cir. 1985), when the plaintiff s president and treasurer testified that he prepared the summary based on the company s business records. Id. at 845. Invoking the business records exception obligates the proponent to lay a proper foundation, not just for the summary exhibit itself, but also for the underlying records. As one treatise instructs: Since the proponent must establish that the underlying documents are themselves admissible, the same general foundation must be laid as if the underlying materials were actually being offered in evidence, minus the sort of item-by-item-in-court identification which ordinarily attends that process. 29A Am Jur 2d Evidence 1079. Rule 803(6) requires a custodian to testify that the records were made contemporaneously with the events and prepared and maintained in the course of a regularly conducted business activity. Based on these requirements, the Seventh Circuit ruled that it was error for the district court to permit the introduction of subpoenaed telephone records without testimony from an appropriate custodian. United States v. Oros, 578 F.3d 703, 708-09 (7th Cir. 2009). Although the Government argued that the testimony of the inspector who subpoenaed those records was enough to establish that they were of the type commonly viewed as trustworthy, the Seventh Circuit held that the inspector s testimony [fell] short of the requirements set by Rule 803(6). Id. Namely, he couldn t testify about the phone company s practices with respect to those records. See id. By contrast, the Tenth Circuit has recognized that summaries of some bank records may be admitted through judicial notice of the exception under Rule 803(6), but only if the judge is able to observe the underlying records beforehand. See United States v. Johnson, 971 F.2d 562, 571 (10th Cir. 1992). Without a live witness, litigants can still invoke the business records exception by submitting a certification under Rule 902(11). This can be easily overlooked when attempting to introduce a summary in lieu of the underlying business records themselves. For instance, in Tsoa, the district court recognized that the business records hearsay exception likely applied to the underlying data, but reserved ruling on admission of the summary exhibit because the prosecution had not yet filed its Rule 902(11) certificate. 2013 U.S. Dist. LEXIS 165895, at *16. Furthermore, merely proffering a Rule 902(11) certificate is not sufficient to gain admission of a summary exhibit; rather the certificate must be entered into evidence along with the summary. See United States v. Hemphill, 514 F.3d 1350, 1359 n.3 (D.C. Cir. 2008). (3) Opinion Testimony & Authentication

Due to the heightened effect demonstrative evidence can have on a jury, along with the practical limitations in verifying the propriety of opinion testimony, common sense counsels for the application of different criteria when a party seeks to introduce a demonstrative exhibit rooted in assumptions and opinions. Universally, courts act with more hesitation in such circumstances and usually require that assumption and opinion evidence be presented elsewhere on the record before it can be used in a demonstrative summary. See, e.g., Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154 (11th Cir. 2004). For example, in United States v. Hart, 295 F.3d 451 (5th Cir. 2002), the prosecution introduced a summary exhibit in a mortgage fraud trial that listed allegedly undisclosed debts, but without any evidence of the defendant s obligation to disclose the full amounts of those debts. Id. at 456-57. In reversing the conviction, the Fifth Circuit ruled that the exhibit carried too much potential for prejudice: The government cannot use a summary chart under FRE 1006 to assume that which it was required to prove beyond a reasonable doubt as operative facts of the alleged offense. Id. at 459. In Eichorn v. AT&T Corp., 484 F.3d 644 (3d Cir. 2007), the Third Circuit upheld the district court s rejection of a summary exhibit because it included improper opinion testimony: The plaintiffs' proffered calculations are better described as a synthesis rather than a summary of the charts and other evidence on which Mr. Crowley relied. The calculations went beyond the data they summarized and included several assumptions, inferences, and projections about future events, which represent Mr. Crowley's opinion, rather than the underlying information. The proposed evidence is thus subject to the rules governing opinion testimony and was properly held inadmissible. Id. at 650. By comparison, opinion and assumption testimony related to future profit projections was properly held to be admissible when the testifying witness had supervised preparation of the summary and was qualified as an expert to testify to the projections. See Olivetti, 762 F. 2d at 845-46. Because the demonstrative included past damages summaries as well as future projections, the appellate court instructed that the better practice was to have one demonstrative for objective facts and a separate demonstrative for assumptions or opinions. Id. At bottom, authenticating a demonstrative exhibit requires personal knowledge about the creation of the exhibit. See Needham, 639 F. 2d at 403 ( Before a summary is admitted, the proponent must lay a proper foundation as to the admissibility of the material that is summarized and show that the summary is accurate. ); see also Rule 602. Generally, the exhibit should be introduced through the witness who supervised its preparation. United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998). Also attendant to opinion summaries are Rules 701, and 702, governing the admission of opinion testimony for lay witnesses and experts, respectively. In order for the demonstrative exhibit to include lay witness opinions, it must be based on their own perception and helpful to understand the witness s testimony or determine a factual issue. Rule 701. Expert opinion testimony requires a qualified witness under Rule 702. Courts, however, treat expertise in the creation of an exhibit differently than expert testimony depicted in an exhibit: Furthermore, the fact that the summary was created using a computer program does not automatically transform the evidence into "expert" testimony. [Defendant] presented testimony that [the witness s] numbers could be checked manually by doing a line-by-line check with each invoice. As long as the summary prepared by [the witness] was within the competence of a lay person, the fact that [he] used a computer to aid in the process does not render his testimony expert

Valjean Mfg. v. Michael Werdiger, Inc., 2007 U.S. App. LEXIS 20475, *5 (2d Cir. Aug. 27, 2007); see also Hemphill, 514 F.3d at 1359 (Nor is it problematic for a witness to perform some calculations in preparing a chart. Even if the calculations are mistaken, the chart is itself admissible, since admissible evidence may be unpersuasive and a defendant has the opportunity to rebut it. ) (internal citations omitted). CONCLUSION Demonstrative evidence is at the core of persuasion. Fairness and compliance with the Rules of Evidence define the boundaries of permissible exhibits. Ultimately, though, the sound discretion of the trial judge will determine the admissibility of demonstrative See, e.g., Hinkle v. City of Larksburg, W.Va., 81 F.3d 416, 424 (4th Cir. 1996); Robinson v. Mo. Pac. R. Co., 17 F.3d 1083, 1087 (10th Cir. 1994).