Court Explains the Law Governing the Admission of Summary Evidence and the Different Standards for Admission of Such Evidence Under Rule 1006 and Rule 611(A)

United States v. White, No. 11-3240. Three defendants were convicted in a mortgage fraud scheme. White was the mastermind who obtained financing for straw purchasers through fraudulent loan applications from homeowners on the brink of foreclosure. Ford was the closing agent who fabricated official documents to facilitate the scheme. Finally, Helton was an attorney who, at White’s behest, represented the homeowners during the closings where he falsely assured clients that everything was in order. The defendants raised a slew of trial and sentencing issues, all of which the court rejected in fairly short order applying well-established law to the facts. The only issue meriting any discussion here was the challenge to a summary chart admitted by the government, given the infrequency one sees an issue on this question in the Seventh Circuit. The chart listed 236 property sale transactions involved in the fraud and was prepared by a government accountant who reviewed all the relevant underlying files. In considering whether the chart was properly admitted, the court followed precedents from other circuits in clarifying the distinctions between the two main ways a party can summarize complex, voluminous documents at trial. First, a party can introduce the information in a summary exhibit under Federal Rule of Evidence 1006, in order to “to prove the content of voluminous writings … that cannot be conveniently examined in court.” If admitted this way, the summary itself is substantive evidence—in part because the party is not obligated to introduce the underlying documents themselves. Because a Rule 1006 exhibit is supposed to substitute for the voluminous documents themselves, however, the exhibit must accurately summarize those documents. It must not misrepresent their contents or make arguments about the inferences the jury should draw from them. The other option is a pedagogical chart admitted pursuant to the court’s “control over the mode … [of] presenting evidence” under Federal Rule of Evidence 611(a). Rule 611(a) pedagogical summaries are meant to facilitate the presentation of evidence already in the record. These summaries are not substantive evidence—instead, the summaries are meant to aid the jury in its understanding of evidence that has already been admitted. For this reason, Rule 611(a) charts can be more one‐ sided in their presentation of the relevant information. Finally, the court noted that “[t]he lines between these two types of summary documents are easily blurred. A summary that is admissible under Rule 1006 … could properly be offered under Rule 611(a) if the supporting material has been admitted into evidence. Likewise, a chart that originally was offered as a jury aid to assist with review of voluminous underlying documents already in evidence—and which accurately summarizes those documents—alternatively could be admitted under Rule 1006 if the court concluded that the supporting documents could not be examined conveniently in court.” In the present case, the chart was submitted as substantive evidence and allowed to go to the jury room, so it had to have been admitted under Rule 1006 and, accordingly to the court, the chart met all the requirements of the Rule and was therefore properly admitted. NOTE: This is one of, if not the, best case on the law governing the admission of summary evidence at trial. Unfortunately, it is buried in a long opinion with a lot of routine issues. The operative pages of the slip opinion are 19 through 24.