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VOLUME 4 - CHAPTER 25
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25.3 Charts, Summaries, Etc.

    25.3.1 Miscellaneous Issues Regarding Pedagological Evidence
    25.3.2 Jury Consideration Of Charts, Summaries, Etc. Which Were Not Admitted Into Evidence
    25.3.3 Propriety Of Instruction Regarding Pedagological Charts, Graphs, Evidence Summaries, Etc.
    25.3.4 When Should Cautionary Instruction Regarding Pedagogical Evidence Be Given?
    25.3.5 Charts, Summaries, Etc. Not Admitted Into Evidence Must Not Go Into The Juryroom
    25.3.6 Permissibility Of Summary Witnesses
    25.3.7 Permissibility Of Overview Witnesses: Improper Before Evidence Is Admitted
    25.3.8 Improper To Allow Summary Overview Of Evidence Not Yet Admitted Into Evidence

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VOLUME 4 - CHAPTER 25

    25.3.1    Miscellaneous Issues Regarding Pedagogical Evidence

PRACTICE NOTE: U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1157-61 identified several other considerations regarding pedagogical summaries in the form of charts, graphs, schedules, etc., including the following:

    1. The rules of evidence regarding summaries of voluminous documents and pedagogical summaries should be the same for prosecutors and defense counsel.

    2. A special danger arises when a summary witness is also used as an expert.

    3. When a summary chart is used, the trial judge must provide an opportunity for cross-examination of its preparer.

    4. Trial judges must be sensitive to the fact that summary charts and witnesses may be offered not to help the jury, but to provide an extra closing argument at the end of a case in chief instead of at the end of the case.

    See also generally FORECITE National™ 276.3.1 [Materials Into Juryroom: Miscellaneous Issues].

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.10A Summaries: Summary Exhibits And Charts].

See also A Manual On Jury Trial Procedures [3.10B Summaries: Summary Testimony].

See also A Manual On Jury Trial Procedures [3.10D. Summaries: Summaries Of Evidence By Counsel].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 3.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.16.

See also 8th Circuit Model Jury Instructions - Criminal 4.11.

See also 8th Circuit Model Jury Instructions - Criminal 4.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.18.

See also 9th Circuit Model Jury Instructions - Criminal 4.19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 8.

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    25.3.2    Jury Consideration Of Charts, Summaries, Etc. Which Were Not Admitted Into Evidence

RATIONALE: A cautionary instruction concerning charts and summaries which have not been admitted into evidence should caution the jury that the summaries and/or charts have no significance if the underlying evidence is not believed.

POINTS AND AUTHORITIES: In U.S. v. Bartone (6th Cir. 1968) 400 F2d 459, 461, the 6th Circuit indicated that the jury should be cautioned that the summaries or charts have no significance if the underlying evidence is not believed.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.10A Summaries: Summary Exhibits And Charts].

See also A Manual On Jury Trial Procedures [3.10B Summaries: Summary Testimony].

See also A Manual On Jury Trial Procedures [3.10D. Summaries: Summaries Of Evidence By Counsel].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 6th Circuit Pattern Jury Instructions - Criminal 7.09.

See also 7th Circuit Federal Jury Instructions - Criminal 3.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.16.

See also 8th Circuit Model Jury Instructions - Criminal 4.11.

See also 8th Circuit Model Jury Instructions - Criminal 4.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.18.

See also 9th Circuit Model Jury Instructions - Criminal 4.19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 8.

SAMPLE INSTRUCTION:

    Of course, if you do not believe the evidence upon which the charts and summaries are based, the charts and summaries have no significance and you must not consider them.

[See also 6th CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.12 [Summaries Not Admitted In Evidence] (1991).]

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    25.3.3    Propriety Of Instruction Regarding Pedagogical Charts, Graphs, Evidence Summaries, Etc.

RATIONALE: Without instruction the jury may place undue emphasis on pedagogical summaries such a charts, graphs, etc.

POINTS AND AUTHORITIES: Pedagogical summaries in the form of charts, graphs, schedules, etc. should only be introduced at trial if adequate protections are provided to minimize the prejudice which may flow from the jury's improper use of the summaries. (See U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1159, fn 10.) For example, the use of such charts is not uncommon in capital cases where the prosecution seeks to summarize the aggravating and mitigating factors. (See e.g, People v. Montiel (CA 1993) 5 C4th 877, 939, fn 36 [21 CR2d 705]; People v. Hamilton (CA 1989) 48 C3d 1142, 1185 [259 CR 701]; People v. Guzman (CA 1988) 45 C3d 915, 971 [248 CR 467].) Assuming the use of such charts is permissible, they "present a serious danger that the jurors will take into their deliberations a misleading impression ...." (People v. Ghent (CA 1987) 43 C3d 739, 782 [239 CR 82], concurring opinion.) It is proper for courts to admit in evidence illustrative charts and maps. (See People v. Watts (CA 1926) 198 C 776, 790 [247 P 884].) On the other hand, charts which are merely a summary of the testimony "merely make it more convenient for the trier of fact to understand [the evidence]" and, therefore, it normally should be of little consequence whether or not the chart is formally admitted into evidence. (See Estate of Busteed (CA 1951) 105 CA2d 14, 21 [232 P2d 881]; see also U.S. v. Johnson, supra, at 1159.) Therefore, summary charts should be used and/or introduced into evidence "only if adequate protections are provided to minimize prejudice ...."  (U.S. v. Johnson, supra, at 1159, fn 10; see also United States v. Griffin (5th Cir. 2003) 324 F3d 330 [demonstrative aids such as charts are permissible to assist the jury in evaluating the evidence, provided the jury is forewarned that the charts are not independent evidence].)  Moreover, the instructions, when appropriate should also "clearly inform [] the jury that the chart represent[s] the [offering party's] analysis." (U.S. v. Johnson, 54 F3d at 1161.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.7; 7.1].

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.10A Summaries: Summary Exhibits And Charts].

See also A Manual On Jury Trial Procedures [3.10B Summaries: Summary Testimony].

See also A Manual On Jury Trial Procedures [3.10D. Summaries: Summaries Of Evidence By Counsel].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 3.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.16.

See also 8th Circuit Model Jury Instructions - Criminal 4.11.

See also 8th Circuit Model Jury Instructions - Criminal 4.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.18.

See also 9th Circuit Model Jury Instructions - Criminal 4.19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 8.

SAMPLE INSTRUCTION # 1:

    Charts and other summary materials utilized by the attorneys for the purpose of summarizing the evidence are no better than the books or the testimony upon which they are based. They are an interpretation of the evidence by the party who submitted them. It is for you to decide whether the charts, schedules or summaries correctly present the data set forth in the testimony and exhibits upon which they are based.

[Adapted from U.S. v. Goldberg (2nd Cir. 1968) 401 F2d 644, 647-48 and U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1160-61.]

SAMPLE INSTRUCTION # 2:

    Certain charts [and] [or] summaries have been received into evidence to illustrate the testimony of some witnesses. Charts and summaries are an interpretation of the evidence by the party who submitted them and are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

[Adapted from 9th CIRCUIT'S MODEL JURY INSTRUCTIONS - CRIMINAL 4.18 [Summaries Not Received In Evidence] (2000).]

SAMPLE INSTRUCTION # 3:

    Any chart or schedule presented to you by the prosecution or defense was prepared solely for the purpose of summarizing the facts claimed by the lawyers to have been proved by testimony, books, records and other documents which are in evidence. In other words, such a chart or schedule merely is the lawyer's pictorial summary of what he contends the evidence shows and is no better than the evidence on which it is based.

    Such charts and schedules, however, are not in and of themselves evidence or proof of any facts. They were used only as a matter of convenience. Under no circumstances may you consider them as independent evidence of anything.

    If you find that any chart or schedule does not correctly reflect facts shown by the evidence in the case, you should disregard it entirely.

[U.S. v. Citron (2nd Cir. 1986) 783 F2d 307, 317.]

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    25.3.4    When Should Cautionary Instruction Regarding Pedagogical Evidence Be Given?

PRACTICE NOTE: To protect against improper considerations of a chart or summary, it may be appropriate to caution the jury when the chart or summary is presented, before deliberations and when the chart is taken into the juryroom. (See e.g., U.S. v. Downen (10th Cir. 1974) 496 F2d 314, 320 [the Court carefully admonished the jury with regard to the precise and limited purpose of the exhibit during trial and gave a supplemental admonition after the jury had retired to deliberate, when the Court permitted a blackboard chart to be taken into the juryroom].)

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.10A Summaries: Summary Exhibits And Charts].

See also A Manual On Jury Trial Procedures [3.10B Summaries: Summary Testimony].

See also A Manual On Jury Trial Procedures [3.10D. Summaries: Summaries Of Evidence By Counsel].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 3.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.16.

See also 8th Circuit Model Jury Instructions - Criminal 4.11.

See also 8th Circuit Model Jury Instructions - Criminal 4.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.18.

See also 9th Circuit Model Jury Instructions - Criminal 4.19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 8.

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    25.3.5    Charts, Summaries, Etc. Not Admitted Into Evidence Must Not Go Into The Juryroom

PRACTICE NOTE: Charts not admitted into evidence may not go into juryroom even if the jury so requests. It is error to send into the jury deliberations a chart prepared by a party as a trial aid but not admitted into evidence. (See U.S. v. Luffred (5th Cir. 1990) 911 F2d 1011, 1014-15 [chart of prosecution’s theory of the case used as an aid during the prosecution’s closing argument].)

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.10A Summaries: Summary Exhibits And Charts].

See also A Manual On Jury Trial Procedures [3.10B Summaries: Summary Testimony].

See also A Manual On Jury Trial Procedures [3.10D. Summaries: Summaries Of Evidence By Counsel].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 3.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.16.

See also 8th Circuit Model Jury Instructions - Criminal 4.11.

See also 8th Circuit Model Jury Instructions - Criminal 4.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.18.

See also 9th Circuit Model Jury Instructions - Criminal 4.19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 8.

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    25.3.6    Permissibility Of Summary Witnesses

PRACTICE NOTE: The dissenting judge in U.S. v. Johnson (4th Cir. 1995) 54 F3d 1150, 1167 argued that the use of summary witnesses is always more prejudicial than probative. When the dissenting judge's analysis is combined with the majority's observation that "[t]he dangers inherent in using a summary witness in a federal criminal prosecution to support the government's case-in-chief are plain" (U.S. v. Johnson, supra, at 1162), the case for excluding summary witnesses might be a strong one. There is no logical reason to assume that the concerns about such witnesses are confined to federal criminal prosecutions, or to assume that state criminal proceedings are immune to the same concerns.

    No case considered whether the prejudice and resultant danger of an unreliable result from use of a summary witness or chart could violate federal constitutional principles (e.g., due process (14th Amendment); trial by jury (6th and 14th Amendments); cruel and unusual punishment in death cases (8th Amendment).

RESEARCH NOTES:

See A Manual On Jury Trial Procedures [3.10A Summaries: Summary Exhibits And Charts].

See also A Manual On Jury Trial Procedures [3.10B Summaries: Summary Testimony].

See also A Manual On Jury Trial Procedures [3.10C. Summaries: Summary Witnesses Using Charts And Exhibits].

See also A Manual On Jury Trial Procedures [3.10D. Summaries: Summaries Of Evidence By Counsel].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 7th Circuit Federal Jury Instructions - Criminal 3.15.

See also 7th Circuit Federal Jury Instructions - Criminal 3.16.

See also 8th Circuit Model Jury Instructions - Criminal 4.11.

See also 8th Circuit Model Jury Instructions - Criminal 4.12.

See also 9th Circuit Model Jury Instructions - Criminal 4.18.

See also 9th Circuit Model Jury Instructions - Criminal 4.19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 8.

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    25.3.7    Permissibility Of Overview Witnesses: Improper Before Evidence Is Admitted

PRACTICE NOTE: There is an established tradition that permits a summary of evidence to be put before the jury with proper limiting instructions. However, the purpose of the summaries in these cases is simply to aid the jury in its examination of the evidence already admitted.

    However, use of an "overview witness," where the witness is put on the stand to testify before there has been any evidence admitted for the witness to summarize, has been condemned by the Fifth Circuit as "a tool employed by the government to paint a picture of guilt before the evidence has been introduced." (United States v. Griffin (5th Cir. 2003) 324 F3d 330, 349.) "Permitting a witness to describe ... complicated [evidence] in terms that do not address witness credibility is acceptable. However, allowing that witness to give tendentious testimony is unacceptable...Allowing that kind of testimony would greatly increase the danger that a jury ‘might rely upon the alleged facts in the [overview] as if [those] facts had already been proved,’ or might use the overview ‘as a substitute for assessing the credibility of witnesses’ that have not yet testified." (Id.; see also United States v. Scales (5th Cir. 1979) 594 F2d 558, 564.)

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    25.3.8    Improper To Allow Summary Overview Of Evidence Not Yet Admitted Into Evidence

PRACTICE NOTE: An overview of evidence to come–as opposed to a summary of evidence already admitted–is improper. See United States v. Casas (1st Cir. 2004) 356 F3d 104, 120 [overview testimony is "especially problematic because juries may place greater weight on evidence perceived to have the imprimatur of the government"].