Distinguishing Summaries And Pedagogical Devices (Part I)

In affirming the use of summaries in a complex healthcare fraud scheme, the Fourth Circuit distinguishes the evidentiary bases to admit summary evidence, in United States v. Janati, 374 F.3d 263 (4th Cir. 2004) (No. 04-4081)

It is often helpful to present evidence at trial as a summary. Summaries can take a variety of forms and the distinction can make a difference in whether it may be admitted as evidence and considered by the jury during deliberations. An interesting Fourth Circuit case considered the differences and is instructive.

The case involved a complex healthcare fraud scheme. A doctor and his wife were charged in a conspiracy with submitting fraudulent reimbursement claims. The government alleged there were false billings in 1300 medical patient files out of approximately 1600 files examined during a seven year period. Sixty-one false claim overt acts were alleged. The trial court decided to limit the government presentation of trial evidence to three days.

The government noted it could comply with the restriction by using summary charts. As the opinion noted, “[c]oncerned about the length, scope, and complexity of the trial, the district court ruled that the government could use charts in its case-in-chief, but it could not refer in those charts or in testimony to any of the 1300 transactions within the scope of the conspiracy that were not alleged as overt acts”. Janati, 374 F.3d at ___. The government took an interlocutory appeal and the circuit remanded the case.

The circuit reviewed the bases to use and admit summaries:

“First, Rule 1006 is a rule to admit charts into evidence as a surrogate for underlying voluminous records that would otherwise be admissible into evidence.… The purpose of this Rule is to reduce the volume of written documents that are introduced into evidence by allowing in evidence accurate derivatives from the voluminous documents. United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991).

“To comply with this Rule, therefore, a chart summarizing evidence must be an accurate compilation of the voluminous records sought to be summarized. 31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 8043, at 525 (1st ed. 2000). Moreover, the records summarized must otherwise be admissible in evidence. 31 id. § 8043, at 521-22. While the Rule does not require that the underlying documentation actually be introduced into evidence, it does require that the documents be made available to the opposing party for examination and copying at a reasonable time and place. Fed. R. Evid. 1006. Finally, under the rule, the trial court can require that the underlying documents actually be brought to court. Id.; 31 Wright & Gold, supra, § 8042, at 519-20. The obvious import of these provisions is to afford a process to test the accuracy of the chart’s summarization.

“Because the underlying documents need not be introduced into evidence, the chart itself is admitted as evidence in order to give the jury evidence of the underlying documents. See Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 190 (4th Cir. 1994). In this respect, Rule 1006 summary charts are distinguishable from other charts and summaries that may be presented under Federal Rule of Evidence 611(a) to facilitate the presentation and comprehension of evidence already in the record. See Fed. R. Evid. 611(a); see also 4 Weinstein’s Federal Evidence § 611.02[2][a][vii] (Joseph M. McLaughlin ed., 2d ed. 2003). These ‘pedagogical’ devices are not evidence themselves, but are used merely to aid the jury in its understanding of the evidence that has already been admitted. See 6 Weinstein’s Federal Evidence, supra, § 1006.04[2]. Thus, pedagogical charts or summaries may include witnesses’ conclusions or opinions, or they may reveal inferences drawn in a way that would assist the jury. 6 id. § 1006.04[2], at 1006-10 to 1006-11. But displaying such charts is always under the supervision of the district court under Rule 611(a), and in the end they are not admitted as evidence.

“Thus, the opinion of expert witnesses can be summarized on pedagogical charts, subject to regulation under Rule 611(a). And these charts may draw on authority granted under Federal Rules of Evidence 703 and 705, summarizing data on which experts in the case have relied or summarizing the expert’s opinions. See Fed. R. Evid. 703; Fed. R. Evid. 705. Whenever pedagogical charts are employed, however, the court should make clear to the jury that the charts are not evidence themselves, but are displayed to assist the jury’s understanding of the evidence. Rule 1006 charts, by contrast, are admitted into evidence as a surrogate for voluminous writings that are otherwise admissible.

“The district court has not definitively ruled on any charts, expressing at the fourth pretrial conference:

‘I have told the Government that in principle they may use summary charts. I don’t know whether they are admissible or they are not admissible. We will have to look at the charts when they come.’

“The court’s general ruling that charts may be used, leaving specified rulings on them until later, does not constitute an abuse of discretion, and on this we affirm.”
Janati, 374 F.3d at ___.

While the circuit remanded the case, the opinion outlines the bases to admit summary evidence. First, summaries of voluminous records may be admitted into evidence, as long as the requirements of FRE 1006 are satisfied. Second, “pedagogical devices,” may be used to summarize evidence as an aid to the jury, but are not admitted into evidence, under FRE 611(a). Third, expert witnesses may use summary charts under FRE 611(a). Finally, when summaries are used, a jury instruction should be given to guide the jury in its consideration of the summary.

Federal Rules of Evidence