Circuit Consensus: Evaluating “Summary” vs. “Pedagogical” Exhibits

The Seventh Circuit recently noted its need “to follow our sister circuits in clarifying the distinctions between the two main ways that a party can summarize complex, voluminous documents at trial.” While it is not clear that the First and Fourth Circuits do anything different than other circuits in the assessment of voluminous evidence, the Seventh was able to draw a clear contrast in the use and admissibility of exhibits admitted under FRE 1006 and those admitted under FRE 611(a), in United States v. White, __ F.3d __ (7th Cir. Dec. 13, 2013) (Nos. 11–3240, 12–1207, & 12–1295)

The case involved a "major mortgage fraud scheme" in which the defendant White, through a company he owned and operated, EHNS, got financing for straw purchasers to buy properties from homeowners "on the brink" of foreclosure. The defendant would strip the properties of equity. The defendant was able to do this with the aid of confederates who helped ensnare victims in the program. One confederate, Ford, was a closing agent who worked for another of White's companies "Title Zone." She fabricated official documents to facilitate the scheme through Title Zone. Another confederate was Helton, an attorney, who helped cover-up the scheme from discovery both from its victims and from authorities. Ultimately the defendant's scheme unraveled and the defendants were charged with wire fraud.

Assessing Charts For Trial

Among the evidence issues that the circuit reviewed was one involving the government's use of a summary exhibit. The exhibit was intended to present examples of fraudulent transactions that were part of the charged scheme. After the court entered the defendant's conviction, the defendants claimed that there was no basis for admitting the evidence. The key features identified by the Seventh Circuit that would guide its assessment of the admissibility of the evidence included:

  • Basis Of Data: Title Zone's files (files prepared by defendant Ford for defendant White's company)
  • Analyst: A government accountant reviewed records of 548 transactions during a two and a half year period
  • Selection Of Sample: "[T]ransactions in which (1) there was an equity payment to EHNS of $15,000 or greater, and (2) the seller's mortgage payoff or payout was greater than $35,000. All 236 transactions [used in the study] ... met these criteria"
  • Evidence Of Defendants' Fraud: The chart listed four items of data: (a) Whether White or EHNS had provided the down payment check; (b) whether the property's buyer had bought multiple properties within a short period of time; (c) whether the loan officer was listed as Larry Collier, Raymond Lewis, Kevin Smith, or Eric Smith (which, as another witness testified, were White's common aliases); and (d) whether the buyer listed one of White's companies as her employer on the loan application.
White, __ F.3d at __.

Relation Of FRE 611(a) And FRE 1006 Exhibits

The Seventh Circuit agreed with the trial court that the exhibit was admissible. It "agreed" with the First Circuit about the ambiguities in figuring out whether the exhibit was admissible under FRE 611 or FRE 1006. For instance, the First Circuit had noted that "[t]he lines between these two types of summary documents are easily blurred," because a FRE 1006 summary "could properly be offered under Rule 611(a) if the supporting material has been admitted into evidence." Even though "a chart that originally was offered as a jury aid to assist with review of voluminous underlying documents already in evidence" could be "admitted under Rule 1006 if the court concluded that the supporting documents could not be examined conveniently in court" even though the exhibit "accurately summarizes" the documents it is presenting. White, __ F.3d at __ (citing United States v. Milkiewicz, 470 F.3d 390, 397 (1st Cir. 2006)).

Fulfilling FRE 1006 Requirements

The Seventh Circuit explained why it was "satisfied" that the chart was "properly admitted ... as a summary under Rule 1006. This Circuit noted that:

The summary fulfilled every requirement of Rule 1006. The underlying Title Zone transaction documents were undoubtedly voluminous: the files filled four banker's boxes. Those boxes were made available to the defendants and the district court; in fact, the government introduced the documents themselves into evidence. And the chart itself was “representative”: it simply catalogued instances of objective characteristics and added those instances together to create totals. True, the chart did not include every single transaction performed by EHNS during the relevant period. Accordingly, at the district court's instruction, the government indicated at the bottom of the spreadsheet that only 236 of the 548 EHNS transactions were listed. Moreover, in the course of three sidebar conferences dealing with the chart's admission, the district court took extensive steps to ensure that the document contained no argumentative labels or phrasing (for instance, the government could not refer to the selected transactions as “bailouts” or describe the characteristics as “suspect”), and the court forbade the government from using the chart's preparer to explain the significance of the characteristics on the spreadsheet or to explain to the jury what inferences it should draw from it. Finally, to the extent that the defendants argue that the chart did not contain other types of information that they wished it did have—for instance, the spreadsheet did not list the amount of the down payment that EHNS provided for each transaction—the defendants were free to cross-examine the spreadsheet's creator to bring out that information.
White, __ F.3d at __ (citing Milkiewicz, 470 F.3d at 398 & n.16 (district court exercised its discretion with “meticulous care” when it took similar steps to excise prejudicial content prior to a Rule 1006 summary's admission); United States v. Swanquist, 161 F.3d 1064, 1072–73 (7th Cir. 1998) (no abuse of discretion where defendant “had ample opportunity during his cross-examination of [the document's preparer] to elicit any facts that might have suggested that the government's charts incorrectly captured the nature of [the underlying documents]”). In addition, the circuit explained that upon admitting the summary chart, the trial judge "). The circuit did note one problem, which ultimately seemed harmless. That was that "[a]fter going through the effort to admit the summary chart under Rule 1006, the district court then instructed the jury that the summary chart was 'not evidence' and that it was only admitted 'to aid you in evaluating other evidence.' This instruction, however, was appropriate for a Rule 611(a) summary, not a Rule 1006 summary" because FRE 1006 evidence "are most certainly evidence. But in any event, the instruction inured to the defendants' benefit. It is not a basis for reversal." White, __ F.3d at __

Conclusion

In White, the Seventh Circuit presented a contrast of evidence under FRE 611(a) and FRE 1006. The contrast is most easily remembered if the circuit's discussion is presented in a form of a chart, as below:

Differences Between FRE 611(a) Evidence And FRE 1006 Evidence

FeaturesSummary Exhibit Pedagogical Exhibit
Rule FRE 1006FRE 611(a)
Purposeprove the content of voluminous writings ... that cannot be conveniently examined in courtfacilitate the presentation of evidence already in the record ("meant to aid the jury in its understanding of evidence that has already been admitted. "
Evidentiary Status is substantive evidence—in part because the party is not obligated to introduce the underlying documents themselves Is Not substantive evidence; court "should instruct the jury that such summaries are not evidence and are meant only to aid the jury in its evaluation of other evidence."

For more on the differences between evidence under FRE 611(a) and FRE 1006, see Distinguishing Summaries And Pedagogical Devices (Part I)"

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Federal Rules of Evidence
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