[**] Attorney General's Honor Program attorney, U.S. Dep't of Justice, Federal Bureau of Prisons, Southeast Regional Office, Atlanta, Georgia. B.S., Florida International University, 1992; J.D., Florida State University, 1996. The author thanks Professor Charles W. Ehrhardt, Florida State University College of Law, for his assistance. Return to text.

[1] FED. R. EVID. 1006. Return to text.

[2] United States v. Johnson, 54 F.3d 1150 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995). Return to text.

[3] United States v. Scales, 594 F.2d 558, 564 (6th Cir.), cert. denied, 441 U.S. 946 (1979). Return to text.

[4] Johnson, 54 F.3d at 1150. Return to text.

[5] Scales, 594 F.2d at 558. Return to text.

[6] Id. at 563. Return to text.

[7] 54 F.3d 1150 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995). Return to text.

[8] FED. R. EVID. 1006. Return to text.

[9] 5 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE, 1006[01] (1996). Return to text.

[10] United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir.), cert. denied, 444 U.S. 964 (1979). Return to text.

[11] WEINSTEIN & BERGER, supra note 9, 1006[03]. Return to text.

[12] "Contents of charts or summaries admitted as evidence under Rule 1006 must fairly represent and be taken from underlying documentary proof which is too voluminous for convenient in-court examination, and they must be accurate and nonprejudicial." MICHAEL H. GRAHAM, EVIDENCE: TEXT, RULES, ILLUSTRATIONS AND PROBLEMS 332 (2nd ed. 1989) (citing United States v. Scales, 594 F.2d 558, 561-63 (6th Cir.), cert. denied, 441 U.S. 946 (1979)). Return to text.

[13] Johnson, 594 F.2d at 1256 ("[C]ommentators and other courts have agreed that Rule 1006 requires that the proponent of a summary establish that the underlying documents are admissible in evidence."). Return to text.

[14] FED. R. EVID. 703:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
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[15] United States v. Kim, 595 F.2d 755, 764 (D.C. Cir. 1979) ("When the underlying documents are not subject to examination by the opposing parties, the summary should not be admitted into evidence."); Wright v. Southwest Bank, 554 F.2d 661, 663 (5th Cir. 1977) (holding that summary is improper when opposing party is not provided with opportunity to examine original records).

Even though the original records need not be introduced into evidence, it is within the court's discretion whether to require production of the documents in court. Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 300-01 (3d Cir. 1961) ("[I]t must be shown that the summation accurately summarizes the materials involved by not referring to information not contained in the original. . . . Usually the records or materials summarized must first be made accessible to the opposing party for inspection and for use in cross-examination."); see also In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 289 (S.D.N.Y. 1971) (explaining that because many important management decisions in the business world are made through intelligent application of statistical and computer techniques, defendants should be able to rely on the same techniques, including computer printouts, in litigation). Return to text.

[16] White Indus., Inc. v. Cessna Aircraft Co., 611 F. Supp. 1049, 1070-71 (W.D. Mo. 1985) (excluding file summary where testimony showed that information in summary was not contained in files "summarized" or elsewhere in record, nor within witness's personal knowledge). Return to text.

[17] See Nichols v. Upjohn Co., 610 F.2d 293, 294 (5th Cir. 1980). Return to text.

[18] WEINSTEIN & BERGER, supra note 9, 1006[06]. Return to text.

[19] United States v. Nivica, 887 F.2d 1110 (1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990) (summary compiled from business records was properly admitted where FBI agent testified concerning summary's source). Return to text.

[20] WEINSTEIN & BERGER, supra note 9, 1006[06]. Return to text.

[21] PAUL R. RICE, EVIDENCE: COMMON LAW AND FEDERAL RULES OF EVIDENCE 856 (1987). Return to text.

[22] E.g., United States v. Johnson, 54 F.3d 1150, 1158 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995). Return to text.

[23] FED. R. EVID. 611(a). Return to text.

[24] FED. R. EVID. 611 advisory committee's note. Return to text.

[25] Id. (citations omitted). Return to text.

[26] Id. Return to text.

[27] Id. Return to text.

[28] Id. Return to text.

[29] 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946 (1979). Return to text.

[30] Id. at 559, 561. Return to text.

[31] Id. Return to text.

[32] Id. at 561-62. Return to text.

[33] Id. at 562. Return to text.

[34] Id. at 561-62. Return to text.

[35] Id. at 563. Return to text.

[36] Id. at 564. Return to text.

[37] Id. at 563. Return to text.

[38] Id. at 564 (citing United States v. Conlin, 551 F.2d 534 (2d Cir.), cert. denied, 434 U.S. 831 (1977); United States v. Jalbert, 504 F.2d 892 (1st Cir. 1974)). Both Conlin and Jalbert in turn cite Gordon v. United States, 438 F.2d 858 (5th Cir.), cert. denied, 404 U.S. 828 (1971), which involved misapplication of bank funds. See Conlin, 551 F.2d at 538; Jalbert, 504 F.2d at 894. Return to text.

[39] Scales, 594 F.2d at 563. Return to text.

[40] Id. at 564. Return to text.

[41] Id. Return to text.

[42] Id. Return to text.

[43] Id. Return to text.

[44] See, e.g., FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ."). Return to text.

[45] Scales, 594 F.2d at 563. Return to text.

[46] See, e.g., United States v. Johnson, 54 F.3d 1150, 1159 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995); United States v. Pinto, 850 F.2d 927, 935 (2d Cir.), cert. denied, 488 U.S. 867 (1988); United States v. Campbell, 845 F.2d 1374, 1381 (6th Cir.), cert. denied, 488 U.S. 908 (1988); United States v. Lemire, 720 F.2d 1327, 1347-48 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984); United States v. Apodaca, 666 F.2d 89, 95 (5th Cir.), cert. denied, 459 U.S. 823 (1982). Return to text.

[47] WEINSTEIN & BERGER, supra note 9, 1006[07]; RICE, supra note 21, at 860; 2 GREGORY P. JOSEPH AND STEPHEN A. SALTZBURG, EVIDENCE IN AMERICA, 5 (1994); see also Pierce v. Ramsey Winch Co., 753 F.2d 416, 431 (5th Cir. 1985) ("Exhibit 30 is clearly a pedagogical device which merely summarizes and organizes data already in evidence."); United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980) ("The [government's] use of the chart . . . contributed to the clarity of the presentation to the jury, avoided needless consumption of time and was a reasonable method of presenting the evidence.") Return to text.

[48] WEINSTEIN & BERGER, supra note 9. Return to text.

[49] See United States v. Baker, 10 F.3d 1374, 1412 (9th Cir. 1993), cert. denied, 115 S. Ct. 330 (1994); United States v. Paulino, 935 F.2d 739, 753 (6th Cir.), cert. denied, 502 U.S. 914 (1991); United States v. Winn, 948 F.2d 145, 158 (5th Cir. 1991), cert. denied, 503 U.S. 976 (1992). Return to text.

[50] WEINSTEIN & BERGER, supra note 9, 1006[07]; see also Gardner, 611 F.2d at 776 n.3 (holding that while it is better practice not to submit to jury charts that summarize admitted evidence, no reversible error was committed). The circuits are split, however, as to whether summaries are pedagogical devices under Rule 611(a) or evidence under Rule 1006, and whether the summary charts can go into the jury room for deliberations. WEINSTEIN & BERGER, supra note 9, 1006[07]; see also United States v. Paulino, 935 F.2d 739 (6th Cir.), cert. denied, 502 U.S. 914 (1991) (summary witness testimony explaining organizational chart fell under Rule 611(a), not Rule 1006); Gomez v. Great Lakes Steel Div., Nat'l Steel Corp., 803 F.2d 250, 257 (6th Cir. 1986) (concluding that summary charts, although used as a pedagogical device, were improperly admitted because court failed to give limiting instruction explaining exhibit's nature and purpose); Gardner, 611 F.2d at 776 (court had discretion under Rule 611(a) to admit chart that avoided needless consumption of time, contributed to the clarity of the presentation to the jury, and was reasonable method of presenting evidence); United States v. Scales, 594 F.2d 558, 563-64 (6th Cir.), cert. denied, 441 U.S. 946 (1979) (summaries are admissible pursuant to Rule 1006 and Rule 611(a)). Return to text.

[51] Winn, 948 F.2d at 159:

[S]ummary charts are, in the trial court's discretion, ordinarily admissible when: (1) the charts are based on competent evidence before the jury; (2) the primary evidence used to construct the charts is available to the other side for comparison in order that the correctness of the summary may be tested; (3) the person who prepared the charts is available for cross-examination; and (4) the jury is properly instructed concerning their consideration of the charts.
See also United States v. Campbell, 845 F.2d 1374, 1381 (6th Cir.), cert. denied, 488 U.S. 908 (1988); Gomez, 803 F.2d at 257; United States v. Collins, 596 F.2d 166, 169 (6th Cir. 1979). Return to text.

[52] 54 F.3d 1150 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995). Return to text.

[53] 725 F.2d 170 (2d Cir. 1983). Return to text.

[54] Id. at 173 (emphasis added). Return to text.

[55] Id. Return to text.

[56] The court devoted two sentences to discussing the admission of summary testimony:

Defendant's third point with respect to the substantive counts is that the district judge permitted the prosecution to introduce as evidence charts on which there was represented primary evidence which was offered by the prosecution and admitted by the court. The admissibility of such charts, provided their function is explained to the jury, as it was in this case by Judge Mishler, has long been recognized.

Id. Return to text.

[57] The only discussion concerning the defendant's arguments came at the very end of the opinion, where the court reasoned that the evidence before the jury was adequate to permit the jury to infer that there was only one conspiracy. Id. at 174. Return to text.

[58] United States v. Casamento, 887 F.2d 1141, 1151 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990) (jury is allowed to have charts in jury room during deliberations as long as judge properly instructs jury that it is not to consider charts as evidence); United States v. Goldberg, 401 F.2d 644, 647-48 (2d Cir. 1968), cert. denied, 393 U.S. 1099 (1969) (jury instructions not abuse of discretion where trial judge explained that charts were not independent evidence but rather only representations of other admitted evidence). Return to text.

[59] United States v. Johnson, 54 F.3d 1150, 1159 n.10, 1159-60 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995). Return to text.

[60] Compare United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991) (pedagogical devices summarizing previously admitted testimony or documents "should not be admitted into evidence or otherwise be used by the jury during deliberations") and United States v. Seelig, 622 F.2d 207, 214 (6th Cir.), cert. denied, 449 U.S. 869 (1980) (holding that such summaries should be accompanied by limiting instruction that summary does not itself constitute evidence) with United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987) (court did not abuse its discretion by admitting charts into evidence, although better practice is to admit charts only as testimonial aid for jury). See also RICE, supra note 21, at 856. Rice states that courts disagree over the evidentiary status of summaries, with some courts improperly holding that summaries are not evidence and restricting their use to assisting the jury in understanding and using the underlying facts and data already in the record. Id. (citing United States v. Atchley, 699 F.2d 1055 (11th Cir. 1983); United States v. Nathan, 536 F.2d 988 (2d Cir. 1976)). Rice goes on to say that the correctly interpreted evidentiary status of summaries was spelled out in United States v. Smyth, 556 F.2d 1179 (5th Cir. 1977), which held that the lower court properly admitted certain FBI computer printouts into evidence. RICE, supra note 21, at 857 (citing Smyth, 556 F.2d at 1184). Rice reconciles these differences by claiming that the courts have erroneously interpreted summary evidence by failing to distinguish between its use as a substitute for primary evidence under Rule 1006 and its use as pedagogical device to aid the jury in evidence organization. Id. at 858. Return to text.

[61] Johnson, 54 F.3d at 1159. Return to text.

[62] Id. Return to text.

[63] Id. at 1160. Return to text.

[64] 594 F.2d at 564. Return to text.

[65] Johnson, 54 F.3d at 1156. Return to text.

[66] Id. Return to text.

[67] Id. at 1157. Return to text.

[68] Id. Return to text.

[69] Id. at 1162. Return to text.

[70] Id. at 1157, 1161. Return to text.

[71] 850 F.2d 927 (2d Cir.), cert. denied, 488 U.S. 867 (1988). Return to text.

[72] Johnson, 54 F.3d at 1158. Return to text.

[73] Pinto, 850 F.2d at 929. Return to text.

[74] Id. at 935. The opinion does not make clear whether all of the information summarized on the charts was already in evidence. The opinion does state, however, that during the ten-week trial, numerous witnesses and voluminous evidence were presented by the government, including references to 66 wiretaps of telephone calls placed to some 35 telephone numbers. Id. Return to text.

[75] Id. Return to text.

[76] The court cited Pinto and Scales in support of this prong of the two-part test. Id. at 1159 (citing Pinto, 850 F.2d at 935; United States v. Scales, 594 F.2d 558, 563 (6th Cir.), cert. denied, 441 U.S. 946 (1979)). The court listed several factors that a trial judge should employ when making this determination, such as the complexity of the case, the length of the trial, and any confusion that a large number of witnesses and exhibits may cause. Id. Return to text.

[77] Id. Return to text.

[78] Id. Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403. Return to text.

[79] Johnson, 54 F.3d at 1160. Return to text.

[80] Id. at 1156-58. Return to text.

[81] Id. at 1157. Return to text.

[82] See 594 F.2d at 564. Return to text.

[83] Note that the summary chart did not reflect objective evidence such as the certain number of wiretaps, addresses, or telephone numbers that the Pinto court admitted into evidence under Rule 611(a). See United States v. Pinto, 850 F.2d 927, 935 (2d Cir.), cert. denied, 488 U.S. 867 (1988). Return to text.

[84] Id. at 1158-59. Return to text.

[85] Scales, 594 F.2d at 564; Pinto, 850 F.2d at 935. Return to text.

[86] For example, one limiting instruction that the district court offered during Agent Hudson's cross-examination was as follows:

The chart . . . is the Government's analysis of the evidence. It is the case as the Government sees it from the evidence which has been adduced here in the courtroom, and, of course, it is subject to such interpretation as you as a jury feel is appropriate to be given to it. In other words, it is presented to show what the Government contends has been proven in the case. That is the contention. It's up to you then as a jury to resolve any issues that may be in your mind concerning [the chart].

Johnson, 54 F.3d at 1160. The district court also charged the jury that "[g]overnment's Exhibit Number 19, that's the chart that was put up, that is simply a summary of what the Government contends that the evidence shows. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case." Id. at 1160-61. Return to text.

[87] The purpose of Federal Rule of Evidence 403 is to balance the admissibility of otherwise admissible evidence in regards to its probative value versus the danger of unfair prejudice to the defendant. FED. R. EVID. 403 advisory committee's note. If the court finds the danger of unfair prejudice outweighs the probative value, the judge may give a limiting instruction to the jury regarding the evidence, or the court may exclude the evidence in its entirety. Id. Return to text.

[88] See FED. R. EVID. 403, 611(a). Return to text.

[89] Johnson, 54 F.3d at 1157. Return to text.

[90] FED. R. EVID. 611(a). Return to text.

[91] Johnson, 54 F.3d at 1161. Return to text.

[92] Id. at 1162. Return to text.

[93] 10 F.3d 1374 (9th Cir. 1993), cert. denied, 115 S. Ct. 330 (1994). Return to text.

[94] 935 F.2d 739 (6th Cir.), cert. denied, 502 U.S. 914 (1991). Return to text.

[95] Baker, 10 F.3d at 1386. Return to text.

[96] Id. Return to text.

[97] Id. at 1411. Return to text.

[98] Id. Return to text.

[99] Id. Return to text.

[100] Id. at 1412. Return to text.

[101] Johnson, 54 F.3d at 1161. Return to text.

[102] Baker, 10 F.3d at 1411. Return to text.

[103] 935 F.2d 739 (6th Cir.), cert. denied, 502 U.S. 914 (1991). Return to text.

[102] Id. at 743. Return to text.

[105] Id. at 752. Return to text.

[106] Id. at 752-53. Return to text.

[107] Id. at 753. Return to text.

[108] Id. Return to text.

[109] Id. at 754. Return to text.

[110] Id. Although the trial judge failed to give a cautionary instruction prior to the summary witness' testimony, the court did give the following jury instruction concerning the nature of the summaries at the close of proofs:

The charts or summaries prepared by the United States and admitted in evidence received for the purposes of explaining facts disclosed by books, records and other documents which are in evidence in the case. Such charts or summaries are not in and of themselves evidence or proof of any facts. If such charts or summaries do not correctly reflect facts or figures shown by the evidence in the case, the jury should disregard them. In other words, such facts or summaries are used only as a matter of convenience. So, if and to the extent that you find they are not, in truth, summaries of facts or figures shown by the evidence in the case, you are to disregard them entirely.

Id. Return to text.

[111] Johnson, 54 F.3d at 1162. Return to text.

[112] Paulino, 935 F.2d at 752-53. Return to text.

[113] Id. Return to text.

[114] Johnson, 54 F.3d at 1161. Return to text.

[115] See, e.g., United States v. Baker, 10 F.3d 1374 (9th Cir.), cert. denied, 115 S. Ct. 330 (1993); United States v. Paulino, 935 F.2d 739 (6th Cir.), cert. denied, 502 U.S. 914 (1991); United States v. Pinto, 850 F.2d 927 (2nd Cir.), cert. denied, 488 U.S. 867 and 488 U.S. 932 (1988); United States v. Scales, 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946 (1979). Return to text.

[116] See discussion supra part III. Return to text.