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Efficiency and Impact: When A Good Summary is Worth More Than A Thousand Words

The Problem. We lose track of and lose control of time in a trial. The one more question, one more point, one more witness begets a second. Trials almost always take longer than expected, and the judge’s time is a terrible thing to waste.

Efficiency and impact are tied to keeping interest. Efficiency is one component of credibility. When we have something meaningful to show and tell, when we are prepared and have a plan, when we display organization and move effectively through our message, we make it easy for our audience by shaving away the unnecessary. Our credibility increases.

Impact is a second component. When we organize the information that matters, when we package it into an easily accessible format, when the details strike the core, we show the meaning without the minutia.

The challenge is how to make our inspiration our reality, being efficient while making an impact. We have a lot of details and little time. Something needs to be done very soon to condense the information in a way that delivers maximum meaning in minimal time.

What do we do? How do we condense the time and maximize the impact?

Rules 1006 and 611. The good news is that we have two rules of evidence designed to help us present and teach in the courtroom.

Rule 1006 Summaries to Prove Content

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Rule 611 Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court must exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Appearance of Parties and Witnesses. The court must exercise reasonable control over the appearance of parties and witnesses so as to:

(1) ensure that the fact-finder can see and assess their demeanor; and

(2) ensure their accurate identification.

(c) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. But the judge may limit cross-examination regarding matters not testified to on direct examination.

(d) Leading Questions.

(1) When Allowed. Leading questions should not be used on direct examination except as necessary to develop a witness’s testimony. Ordinarily, the court should allow leading questions:

(A) on cross-examination; and

(B) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

(2) Intent to Ask Not Required. It is not necessary to declare the intent to ask leading questions before the questioning begins or before the questioning moves beyond preliminary inquiries.

The Rules in Action. These two rules encourage us to Show & Tell with demonstrative evidence. MRE 1006 addresses summaries of primary evidence, and MRE 611 addresses pedagogic (teaching) aids. The two rules also can be combined to produce hybrid summaries. See United States v Bray, 139 F3d 1104 (6th Cir 1998).

MRE 1006 summaries are substantive evidence. They summarize voluminous information. MRE 611 pedagogic aids teach, illustrate, explain, summarize, arrange in some chronology. And the hybrid combines a Rule 1006 summary with illustrative aids.

MRE 1006 Quick Hits:

  • MRE 1006 is fairly straightforward: the underlying documents are voluminous enough that they cannot conveniently be examined in court. Realistically, summaries of voluminous books, records, or documents are the only practicable means of making the evidence available in a useable fashion.to judge and jury. The rule also recognizes appropriate safeguards.
  • These summaries are primary-evidence summaries: charts, summaries or calculations of other documents. They should be: (1) accurate, correct, not misleading; (2) not embellished by conclusions or inferences or unfair labels, captions, or highlighting techniques.
  • The summary may be admitted into evidence. The underlying documents need not be in evidence.

MRE 611 Quick Hits:

  • MRE 611(a) permits the use of demonstrative aids throughout the trial, including illustrative aids during opening statement and closing argument. See also MRE 1006 (summaries of voluminous documents). The judge controls the courtroom, and, together with MRE 403, MRE 611 permits all forms of trial management.
  • Pedagogic aids are not evidence themselves; they are aids in understanding the evidence. They illustrate witness testimony or summarize/analyze testimony and documents already admitted into evidence.
  • The purpose is to demonstrate, explain, summarize, give clarity, add interest, illustrate other admitted evidence, make evidence more comprehensible. Common examples include: duplicates, models, maps, charts, drawings, diagrams, computer-generated pedagogic aids, chalkboard drawings, calculations, and listings of data taken from testimony or documents in evidence.
  • These teaching aids facilitate the presentation of testimony or argument. They are effective for the ascertainment of truth while avoiding the needless consumption of time. They organize the trier-of-fact’s examination of testimony or documents already admitted.
  • We seek exhibits that are fair and accurate representation, substantially accurate, and not misleading or distorted. We are wary of summaries containing inferences and assumptions that are not fully supported by evidence, and we are wary of flat-out argument.
  • MRE 611 summaries may be used in opening statements and closing arguments. They are not normally admitted as evidence and do not by themselves constitute evidence. In a jury case, a limiting instruction would be appropriate.

Hybrid Quick Hits:

  • Hybrid summaries combine a Rule 1006 summary with illustrative aids.
  • These summaries should materially assist the trier-of-fact in better understanding the evidence by accurately and reliably summarizing complex or difficult evidence. The summary is only as valid and reliable as the underlying evidence it summarizes.
  • If admitted at all (not the usual case), the summary is admitted in addition to the underlying documents and testimony. A limiting instruction is common in jury cases.