Federal Evidence Review

Sixth Circuit case identifies three kinds of summaries that may be introduced at trial, including (1) “primary-evidence summaries”; (2) “pedagogical-device summaries or illustrations”; and (3) “secondary-evidence summaries” based on the first two types; case continues to support model circuit instruction on summary evidence, in United States v. Bray, 139 F.3d 1104, 1111-12 (6th Cir. 1998) (No. 96-2261)

Summary evidence may be essential to summarize voluminous records or to illustrate or clarify key evidence in the case. Normally summary evidence is admissible under FRE 1006 or FRE 611(a). As previously noted, the distinction between summary and pedagogical exhibits can make a difference. See Distinguishing Summaries And Pedagogical Devices (Part I). One noteworthy Sixth Circuit case identified three categories for summary evidence. This precedent continues to apply in the Sixth Circuit and is helpful in reviewing this issue.

In the case, defendant Bray and a co-defendant were prosecuted for embezzling 20,000 during his employment with the United States Postal Service. At trial, the government introduced summaries based on Postal Form 1412, which is used by postal clerks to track their daily transactions. Four summary charts were introduced. The first two exhibits summarized the stamp transactions for defendant Bray and his co-defendant on a quarterly basis. The second two exhibits summarized the activity of two employees who replaced the co-defendants during a four-month period. The government contended that the pattern shown in the charts confirmed the embezzlement scheme, as the replacement employees had comparable sales and stamp orders but the defendants had an increase in stamp orders over time. Defendant Bray was convicted at trial. His co-defendant confessed and reported the matter to law enforcement. On appeal, defendant Bray contended that the summary exhibits were admitted in error without the supporting documents and without a limiting instruction.

The Sixth Circuit affirmed the admission of the charts and used the case to explain the different types of summaries that may be admitted at trial. Three kinds of summaries were identified in the opinion:

“(1) Primary-evidence summaries, such as those at issue here, which summarize ‘voluminous writings, recordings, or photographs’ that, because they are so voluminous, ‘cannot conveniently be examined in court.’ Fed. R. Evid. 1006. In this instance, the summary, and not the underlying documents, is the evidence to be considered by the factfinder.

“(2) Pedagogical-device summaries or illustrations, such as chalkboard drawings, graphs, calculations, or listings of data taken from the testimony of witnesses or documents in evidence, which are intended to summarize, clarify, or simplify testimonial or other evidence that has been admitted in the case, but which are not themselves admitted, instead being used only as an aid to the presentation and understanding of the evidence. For these the jury should be instructed that the summaries are not evidence and were used only as an illustrative aid.

“(3) Secondary-evidence summaries that are a combination of (1) and (2), in that they are not prepared entirely in compliance with Rule 1006 and yet are more than mere pedagogical devices designed to simplify and clarify other evidence in the case. These secondary-evidence summaries are admitted in evidence not in lieu of the evidence they summarize but in addition thereto, because in the judgment of the trial court such summaries so accurately and reliably summarize complex or difficult evidence that is received in the case as to materially assist the jurors in better understanding the evidence. In the unusual instance in which this third form of secondary evidence summary is admitted, the jury should be instructed that the summary is not independent evidence of its subject matter, and is only as valid and reliable as the underlying evidence it summarizes.”

Bray, 139 F.3d at 1112 (citations omitted; bold emphasis added).

The Sixth Circuit concluded that the summaries introduced at trial were admitted under the first category under FRE 1006. Consequently, there was no error when the trial court refused to give a limiting instruction.

The Bray precedent guides the current jury instruction for summaries considered in the Sixth Circuit. The two model instructions are set forth below:

Sixth Circuit Criminal Pattern Jury Instruction 7.12 Summaries And Other Materials Not Admitted In Evidence

“During the trial you have seen counsel use [summaries, charts, drawings, calculations, or similar material] which were offered to assist in the presentation and understanding of the evidence. This material is not itself evidence and must not be considered as proof of any facts.”

Use Note

“This instruction should be used when pedagogical-device summaries or similar material are not admitted into evidence. If the summaries or similar material are admitted into evidence as secondary-evidence summaries, see Instruction 7.12A. If the summaries or similar material are admitted into evidence as primary-evidence summaries, no instruction is necessary.”

h3. Committee Commentary 7.12
(current as of December 1, 2009)

“This instruction is based on United States v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998), in which the Sixth Circuit noted some confusion in past cases and provided a comprehensive discussion on the treatment of summary evidence….”

Sixth Circuit Criminal Pattern Jury Instruction 7.12A Secondary- Evidence Summaries Admitted In Evidence

“(1) During the trial you have seen or heard summary evidence in the form of [a chart, drawing, calculation, testimony, or similar material]. This summary was admitted in evidence, in addition to the material it summarizes, because it may assist you in understanding the evidence that has been presented.

“(2) But the summary itself is not evidence of the material it summarizes, and is only as valid and reliable as the underlying material it summarizes.”
Use Note

“… This instruction should be used when summaries or similar material are admitted into evidence as secondary-evidence summaries.… If the summaries or similar material are admitted as primary-evidence summaries, no instruction is necessary. If the summaries or other material are not admitted into evidence, see Instruction 7.12.”