A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC 25.3 [Charts, Summaries, Etc.]

When considering the admissibility of "summary of evidence" exhibits, it is important to distinguish between charts or summaries as evidence and charts or summaries as illustrative or "pedagogical devices." United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991).

1. Charts and Summaries as Evidence

Charts and summaries as evidence are governed by FRE 1006, which allows the introduction of charts, summaries, or calculations "of voluminous writings, recordings, or photographs which cannot conveniently be examined in court." The party seeking to admit a summary as evidence under FRE 1006 must establish a foundation that (1) the underlying materials upon which the summary is based are admissible in evidence, and (2) the underlying documents were made available to the opposing party for inspection. United States v. Johnson, 594 F.2d 1253, 1254-57 (9th Cir.), cert. denied, 444 U.S. 964 (1979). See also Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984). FRE 1006 does not encompass summaries of previously admitted oral testimony. United States v. Baker, 10 F.3d 1374, 1411 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994), overruled on other grounds, United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000).

2. Charts and Summaries as Illustrative or "Pedagogical Devices"

Charts or summaries of testimony or documents already admitted into evidence merely help illustrate, and are not evidence themselves. Illustrative materials used only as a testimonial aid should not be admitted into evidence or otherwise used by the jury during deliberations. Wood, 943 F.2d at 1053-54 (citing United States v. Soulard, 730 F.2d 1292, 1300 (9th Cir. 1984)); United States v. Abbas, 504 F.2d 123, 125 (9th Cir. 1974), cert. denied, 421 U.S. 988 (1975)). The court may consider telling the jury that illustrative or demonstrative exhibits will not be available during deliberations. In addition, cautionary instructions should be given to the jury when summary charts are used for pedagogical purposes. Soulard, 730 F.2d at 1300.

The court may wish to include in the pretrial order a requirement that summary charts be produced in advance of trial. The court may also give a cautionary instruction both at the time the evidence is introduced and again during final instructions. See 9TH CIR. CIV. JURY INSTR. 3.9 & 3.10 (2001); 9TH CIR. CRIM. JURY INSTR. 4.18 & 4.19 (2003).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC 25.3 [Charts, Summaries, Etc.]

A summary of oral testimony as opposed to documentary evidence, whether by an expert or nonexpert, is disfavored, but may be admissible in exceptional cases pursuant to Fed. R. Evid. 611(a). The court should "exercise reasonable control over the mode . . . of . . . presenting evidence so as to (1) make the . . . presentation effective for the ascertainment of the truth, [and] (2) avoid needless consumption of time." Baker, 10 F.3d at 1412 (nonexpert summary testimony); United States v. Olano, 62 F.3d 1180, 1204 (9th Cir. 1995) (nonexpert summary testimony), cert. denied, 519 U.S. 931 (1996). For cases involving expert summary testimony, see United States v. Marchini, 797 F.2d 759, 765-66 (9th Cir. 1986), cert. denied, 479 U.S. 1085 (1987) and United States v. Cuevas, 847 F.2d 1417, 1428 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989). In both cases the admission of expert summary testimony was upheld because it was based upon the evidence adduced at trial and the witness was subjected to thorough cross-examination about his or her testimony after it was admitted.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC 25.3.6 [Permissibility Of Summary Witnesses]

Summary witnesses may use charts and summary exhibits for illustrative and demonstrative purposes, provided the offering party lays a foundation, the opposing party has had an opportunity to review the charts and summaries, and the court gives appropriate limiting instructions. Olano, 62 F.3d at 1204; Baker, 10 F.3d at 1412. The Ninth Circuit has cautioned, however, that where the summary witness is summarizing previous oral testimony, the charts and summary exhibits are more appropriately presented by counsel during closing argument. Baker, 10 F.3d at 1412.

Summary charts and exhibits used by summary witnesses should be admitted under Rule 611(a) only in exceptional circumstances. Olano, 62 F.3d at 1204. In Olano, the admission of summary charts was upheld under Rule 611(a) because the defendants had an opportunity to review the charts, the defense had an opportunity to cross-examine the summary witness, and the court gave a limiting instruction informing the jury that the charts were not being admitted as substantive evidence. Id.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC 25.3 [Charts, Summaries, Etc.]

"[A] summary of oral testimony is generally the purpose and province of closing argument." Baker, 10 F.3d at 1412. Thus, counsel may orally summarize and argue the evidence, and use charts and summaries as a visual aid. Abbas, 504 F.2d at 125. The court may also allow counsel to present mini-arguments during the trial. See § 3.17.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

NCJIC 16.14.3.1 [Summary of Evidence by Judge: Cautionary Instruction]

It is strongly recommended that the court not comment on the evidence. If the court comments upon the evidence, caution should be exercised in doing so. Quercia v. United States, 289 U.S. 466, 469-70 (1933). See also Rodriguez v. Marshall, 125 F.3d 739, 749 (9th Cir. 1997), cert. denied, 524 U.S. 919 (1998).

If the court comments on the evidence, judges must avoid the appearance of advocacy or partiality. United States v. Sanchez- Lopez, 879 F.2d 541, 552 (9th Cir. 1989) (defamation case). Nor may a judge comment on a witness§s credibility if such credibility is a crucial factor in the case. Id. Reversal is also required if a judge expresses his opinion on an ultimate issue of fact in front of the jury or argues for one of the parties. Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir. 1991). Judges should avoid making prejudicial remarks, especially in criminal cases. For instance, a judge may not comment on a criminal defendant§s guilt. United States v. Wills, 88 F.3d 704, 718 (9th Cir.), cert. denied, 519 U.S. 1000 (1996). In sum, "[j]udicial comments must be aimed at aiding the jury§s fact finding duties, rather than usurping them." United States v. Stephens, 486 F.2d 915, 917 (9th Cir. 1973).