Summary Exhibits Under Fed. R. Evid 1006 Must Be Carefully Prepared to be Admitted into Evidence

In a recent decision, Judge James C. Cacheris provided trial practitioners a valuable roadmap to the use of summary exhibits under Fed. R. Evid 1006.  Practitioners often are well-advised to use charts and graphics to communicate complicated factual and legal arguments to a judge or jury. But the careful practitioner must successfully navigate a series of potential pitfalls to ensure that their carefully designed graphical exhibits are admitted into evidence and make their way to jury room.

In United States v. Ging-Hwang Tsoa, 1:13cr137, 2013 WL 6145664 (E.D. Va. Nov. 20, 2013), the defendant was charged with participating in a complicated mortgage fraud conspiracy involving thousands of documents.  Prior to trial, the Government moved in limine to admit into evidence several charts that summarized many pages of documentary business records under Fed. R. Evid. 1006.  In his opinion, Judge Cacheris outlined the analysis used to admit a summary exhibit, and in doing so, provided a working example of the Fourth Circuit’s recent analysis of the differences between R. 1006 summary exhibits and non-admissible demonstratives.

Quoting the Fourth Circuit, Judge Cacheris noted that 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.”  He then went on to provide the minimum elements necessary to warrant admission under Rule 1006: “(1) the summarized material must be ‘voluminous’ and not conveniently subject to examination in court; (2) the summary or chart must be an accurate compilation of the voluminous records; (3) the records summarized must be otherwise admissible into evidence; and (4) the underlying documents must be made available to the opposing party for examination and copying.”

The Government, however, did not totally win its in limine motion, and in doing so, provided a cautionary example to trial practitioners  Judge Cacheris refused to admit the summary exhibit into evidence at that point because the Government failed to provide a Certification of Authenticity of the business records under Fed. R. Evid. 902(11).  Subpart 11 was added to Rule 902 in 2000 and allows business records to be admitted into evidence under Fed. R. Evid. 803(6) upon a certification of a custodian or other qualified person.  This certification eliminates the need to have a custodian appear at trial simply to authenticate business records.  Under Rule 902(11), however, the moving party must give the adverse party prior written notice before the trial or hearing of the intent to offer the Certification and must also make both the business records and the Certification available to the other side.  Rule 902(11) does not define what prior “reasonable” notice means, so practitioners are best advised to provide the notice as early as possible and well before the eve of trial.

In doing this, Judge Cacheris implicitly connected two other Rules of Evidence – Rules 902(11) and 803(6) – to the summary exhibit rule 1006.  A practitioner wanting to present summary exhibits under Rule 1006 must also satisfy the requirements of the Rules of Evidence that apply to the underlying documents that are being summarized.

In this case, the Government’s oversight is likely not fatal.  Judge Cacheris’s opinion essentially says that once the Rule 902(11) Certification is provided, and if provided with “reasonable” advance notice to the other side, the Government’s summary exhibit will be admitted into evidence.  And because this was a motion in limine, the Government has time before trial to prepare and submit the Certification.  But if this had not been an in limine motion, and it had instead been in the midst of trial, the Government would likely have been unable to admit its summary exhibit into evidence.

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