Trial Magazine

The new Federal Rule of Evidence 107 specifically states that an illustrative aid is not evidence and may not be provided to the jury during deliberations unless all parties agree or the court, for good cause, orders that the jury be allowed to examine the aid.¹ The rule is based on a 2015 state rule regulating “chalks,” or notes taken on a blackboard.²

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Basic drawings and bullet points made by an attorney to help the jury understand witness testimony would be considered illustrative aids under the purview of the new rule.

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Although illustrative aids have become much more sophisticated since blackboards reigned supreme, basic drawings and bullet points made by an attorney to help the jury understand witness testimony would be considered illustrative aids under the purview of the new rule.

The rule applies to all aspects of a trial, including opening statements and closing arguments. Importantly, following the public comment period, the requirement that attorneys provide notice before using an illustrative aid was removed from the text of the rule due to the efforts of AAJ and its members who engaged in the rulemaking. Notice is now at the discretion of the judge. The Committee Note that accompanies the rule provides additional direction, including a warning that “advanced disclosure may improperly preview witness examination or attorney argument.”

Although there is no definition of an illustrative aid provided in the rule text itself, both the rule and the Committee Note make it clear that an illustrative aid is not evidence. Specifically, Rule 107(a) states:

The court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument if the utility in assisting comprehension is not outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.

To reinforce the Advisory Committee on Evidence’s intent that an illustrative aid is not evidence, the rule was given an entirely new number. The rule was originally drafted as a subsection to Rule 611, which governs the Mode and Order of Examining Witnesses and Presenting Evidence.

However, after the public comment period closed, the evidence committee determined that the rule could easily get lost in a rule about presenting evidence and thus should be given its own number. This should also make it easier to find and distinguish it from Rule 404, which regulates the admissibility of relevant evidence. Rule 107(c) provides that when practicable, the illustrative aid must be entered into the record as an exhibit.

The Committee Note also reinforces that illustrative aids are intended to help the trier of fact understand the evidence. The note now says that “an illustrative aid is any presentation offered not as evidence but rather to assist the trier of fact to understand evidence or argument.” Language that was hostile to the use of illustrative aids was removed by the evidence committee following the comment period. Specifically, the committee removed, “Experience has shown that illustrative aids can be subject to abuse.”

Finally, in Rule 107(d), the evidence committee added a cross-reference to Rule 1006 on Summaries of Voluminous Materials. Rule 1006 was amended during the same public comment period as Rule 107, with those changes also taking effect on Dec. 1. It is important for practitioners to understand the differences between these two rules when considering which one to apply.

The changes to Rule 1006 were initiated by the committee to clean up circuit splits that had developed, with the committee believing that some circuits were misinterpreting the rule. Under the amended Rule 1006, summaries of voluminous information are admissible as evidence without any underlying documentation.³ That satisfies the purpose of the rule: to make voluminous information more understandable to a jury.

Some courts have misinterpreted the current rule to require both the summary of the information and the underlying documentation, negating the purpose of the rule. Other courts had incorrectly determined that admitting any of the underlying documents negated the rule, which is also unhelpful to the trier of fact.

For example, in an unemployment discrimination case, it might be helpful for the jury to see the actual pay stub of the employee alleging discrimination, as well as a summary documenting how long the discrimination had occurred and the total amount of pay that the plaintiff was paid compared to other employees with the same job at the company.

The changes to Rule 1006 will permit both a summary and an underlying document without the requirement that all underlying documents be admitted into evidence or a determination that the use of an underlying document negates the ability to use a summary. Both a voluminous summary and an illustrative aid can be used in the same trial to educate the jury. For example, using a white board to list key facts from a witness about the company’s pay policy would be an illustrative aid while the employee’s pay stub would be considered demonstrable evidence.

AAJ is the only national plaintiff-side legal organization advocating for fair federal rules on behalf of plaintiff lawyers and their clients. Engagement by AAJ and its members is vitally important. Through comments and testimony, AAJ members play a key role in educating the advisory committee members about the impacts of proposed amendments, and changes at the federal level are frequently adopted by states. For more information, visit www.justice.org/federalrules.

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Susan Steinman is AAJ’s senior director of policy and senior counsel and can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.

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Notes

1. See Fed. R. Evid. 107(b).
2. See Me. R. Evid. 616.
3. Federal Rule of Evidence 1006(b) requires that a proponent make the underlying documentation available for examination or copying by other parties at a reasonable time and place. The court may order the proponent to produce the documentation in court.