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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Fourth Circuit: Appellate Challenge to Summary Chart Requires Careful Attention to Avoid Waiver

A recent decision by the U.S. Court of Appeals for the Fourth Circuit illustrates the need for careful planning at the briefing stage to review the admission of a summary chart at trial.  In U.S. v. Katsipis, 598 Fed. Appx. 162 (4th Cir. 2015), an appeal from the U.S. District Court for the Eastern District of Virginia (Norfolk Division), a criminal defendant challenged his conviction under 33 U.S.C. § 1908(a) (2012), which requires ocean-going vessels to maintain an accurate “Oil Record Book.”  The Oil Record Book is a log of any discharge of oil contaminants into the sea, which is required under MARPOL, an international treaty governing ocean-going vessels.

During a U.S. Coast Guard inspection of the M/V Antonis G. Pappadakis, a bulk cargo carrier, multiple crew members accused Chief Engineer Lambros Katsipis of rigging a bypass system that flushed contaminated bilge water out to sea without sending the water through the ship’s oily water separator as required.  The crew members alleged that Katsipis encouraged them to lie about this bypass system to any law enforcement personnel who asked about it, and the Oil Record Book failed to reflect the bypass system.  Katsipis was subsequently indicted and tried by a jury in the Norfolk Division of the U.S. District Court for the Eastern District of Virginia.

At trial, the Government offered into evidence, under Fed. R. Evid. 1006, a summary chart prepared by a witness who investigated the ship.  The summary chart totaled the number of times that the defendant’s predecessor ran the oily water separator and then compared that number against the substantially-lower number of times that the defendant ran the separator over the same period of time.  The summary chart drew upon records in the ship’s Oil Record Book. The jury convicted Katsipis, and he was sentenced to one year of probation.

On appeal, Katsipis argued that the summary chart was improperly admitted into evidence.  Katsipis pointed to the witness’s testimony about the chart, specifically that the witness acknowledged during cross-examination that “the chart was of limited usefulness, as it accounted for no potentially confounding variables over the aggregate twenty-three month period.”

In a pointed comment in the opinion, the Fourth Circuit interpreted Katsipis’s argument as a challenge to admission under Fed. R. Evid. 403 and not under Fed. R. Evid. 1006.  The Fourth Circuit noted, “[w]hile Fed. R. Evid. 1006 typically governs the admission of summary charts, Katsipis only claims that the chart presented a danger of prejudice that outweighed its probative value, not that it failed to meet the standard for admission under Rule 1006.  Accordingly, we review Katsipis’s claim under Rule 403.”

As most federal trial lawyers know, Fed. R. Evid. 403 provides a low bar to the admission of relevant evidence.  If the danger of unfair prejudice substantially outweighs the probative value of the evidence, the court may exclude the evidence.  In real practice, Rule 403 does not often succeed in excluding evidence.  Instead, the Rule is only seriously considered in extreme cases, an illustrative example being repetitive graphic photos of murder victims at a crime scene.  It is no real surprise that the Fourth Circuit rejected Katsipis’s Rule 403 argument.

Further, the Court never considered whether the summary chart was proper under Rule 1006 because Katsipis was deemed to have waived the argument.  The Fourth Circuit’s opinion is unclear whether the waiver resulted from Katsipis’s failure to object under Rule 1006 during trial or whether the appellate briefs submitted to the Fourth Circuit omitted the argument.  Either way, this case offers an example of how an appellate consultant could assist a lawyer at trial, especially in criminal cases.  An appellate lawyer with a different eye can assist trial counsel to identify and preserve issues for appeal, while the trial lawyer focuses on the many preparations needed for a jury case.

Finally, this case reminds trial practitioners of the value of Fed. R. Evid. 1006 and the charts that may be presented to a jury to summarize voluminous (and dry) information or records.  We are all aware that people tend to be visual learners, especially so in our modern era dominated by smart phones and tablets.  Trial counsel should use this important tool of advocacy, which is chiefly limited only by the attorney’s creativity.