TBA Law Blog


Posted by: Wade Davies on Mar 1, 2017

Journal Issue Date: Mar 2017

Journal Name: March 2017 - Vol. 53, No. 3

As far back as 1918 Tennessee Courts admitted “summary” evidence.[1] Those courts had no idea what was to come with the information revolution. With massive quantities of data available now, the need for the admission of summaries is critical. We tend to think of Tennessee Rule of Evidence 1006, allowing summaries, as applying in
document intensive civil litigation. But now in criminal cases there can be volumes of potentially relevant evidence that only a summary can make come alive for the jury. As lawyers we tend to spend a lot of time fighting over access to electronic data. More important, however, is how to use it effectively once we get it. A summary witness can help introduce and make sense of large amounts of information, but more importantly, the “summary” can be crafted to support your theory of the case. The trick is to present it in a format that isn’t just a dry summary chart but in a way that engages the jury and advances your theory. The meagre Tennessee case law on Rule 1006 (mostly regarding financial records in divorce cases) makes me think criminal law practitioners haven’t made adequate use of the benefits of being allowed to put a “chart, summary or calculation” into evidence.

The requirements of the rule are straightforward.[2] First, the evidence to be summarized must be admissible. You have to make sure that the other side has access to the underlying material. The requirement that the material be provided to the other side for inspection allows any objections to be raised before trial. Next, the information has to be voluminous. Some cases have held that this means that the information be too voluminous to be introduced, but most recent decisions allow summaries even of evidence that has been admitted. The fact that the summary was created in anticipation of litigation does not matter.[3] All summaries are created for litigation.

A summary can be introduced by testimony, an exhibit or, ideally, both. Summaries are not just pedagogical devices but admissible substantive exhibits. So, think about a chart that you might want to use in closing argument — something with nice colors and arrows. Then, think about whether it would be more effective to try to create a “chart, summary or calculation” that could be admitted as an exhibit. Remember, the court isn’t supposed to give a cautionary instruction about the chart not being evidence, when the information is actually admitted under Rule 1006.[4]

Sometimes in a criminal case it is nice to have a witness who can testify to favorable facts but who wasn’t involved in any of the underlying conduct or even in producing the documents being summarized. There is no requirement that the person preparing and testifying about the summary have personal knowledge or any connection with the material being summarized. The witness can testify about facts that are in the underlying documents, recordings or photos without counsel having to worry about cross-examination about the witness’s own conduct with regard to the facts in question.

Because the summary is substantive evidence to be used in the party’s case in chief, it should be provided to opposing counsel pursuant to Rule 16 of the Tennessee Rules of Criminal Procedure. If you have taken the time to prepare a great summary that sets out your theory of the case, consider filing a motion in limine prior to trial to ensure the court will deem it admissible. If an objection is raised at trial, there might not be time to fix a problem with the summary.

There are a number of ways that charts and summaries have been used effectively as noted in caselaw. An example that might be relevant in the criminal law context is a summary of the amount of money lost to fraud.[5] Defense counsel might want to show the amount of money received by a witness or otherwise chart and summarize negative activity by a witness. Phone records, including in some cases, location data from the phone carrier (or the phone itself), might be charted summarized under the rule to point out to the jury the locations frequented by a witness or defendant. Summaries of medical expenses,[6] time records[7] and voluminous undercover recordings have also been admitted under the corresponding federal rule.[8] Summaries of emails, text messages or social media usage could be extremely important in a criminal case because often we are getting such a huge volume of electronic evidence in discovery.

In the Sixth Circuit in addition to summarizing documents that are too voluminous to examine in court, you can also prepare and admit “secondary evidence” summaries of evidence that has been admitted.[9] Having been on the losing side of this argument, I can vouch for the effectiveness of creating a colored chart setting out the government’s theory and summarizing the most important documents for each count. A summary then, can be admitted through a witness who testifies by summarizing the party’s position and theory. Using a witness and being able to introduce the chart is perhaps more effective than presenting the same information during closing argument by counsel.

You don’t have to spend a lot of money to create an effective summary. While it might be appropriate to have a summary admitted by an expert, an investigator or paralegal can prepare and offer testimony about the summary. We have used law students in that role.

Opposing a summary: When you are on the receiving end of a deadly summary, there is sometimes fertile ground for cross examination of the summary witness. The objectivity of the summary can be undermined by pointing out that the summary leaves out information that is favorable to the other side. You shouldn’t confine your cross examination to the methods used in compiling the summary, though. Any material in the summarized documents is fair game. If the case is document intensive, the cross-examiner can take the time to go through all of the favorable points in the summarized material. You can almost get your adversary’s summary witness to re-emphasize your entire theory of the case. This is especially helpful if the witness wasn’t involved in creating the underlying documents. You can cross them by putting the helpful documents in front of them, showing them to the jury and simply reading the helpful sections. Also, it may be possible to object that the “summary” witness is really offering an expert opinion and that the testimony should be excluded if the expert does not satisfy the rules for admission of expert testimony.

Jurors today are used to visual aids. If you watch the news, there is always a summary scrolling at the same time. An effective summary, admissible under Rule 1006, can help jurors understand and identify with your position.

Notes

  1. Tenn. R. Evid. Rule 1006, Advisory Commission Comments, citing Stewart v. Follis, 140 Tenn. 513, 521, 205 S.W. 444 (1918).
  2. See Cohen, Sheppeard & Paine, 1-10 Tennessee Law of Evidence § 10.06 (2016).
  3. Fusner v. Coop Constr. Co., 211 S.W.3d 686, 693 (Tenn. 2007).
  4. United States v Bray, 139 F.3d 1104, 1112 (6th Cir. 1998).
  5. See Regions Bank N.A. v. Williams, 2014 Tenn. App. LEXIS 66, *13, 2014 WL 575889 (Tenn. Ct. App. Feb. 12, 2014)(loss chart).
  6. Eberbach v. Eberbach, 2015 Tenn. App. LEXIS 872, *9, 2015 WL 6445480 (Tenn. Ct. App. Oct. 23, 2015)(summary of medical expenses).
  7. Alexander v. Inman, 903 S.W.2d 686, 702, 1995 Tenn. App. LEXIS 70, *47 (Tenn. Ct. App. 1995)(attorney time records).
  8. United States v. Denton (6th Cir. Mich. 1977), 556 F2d 811, cert. denied, (U.S. 1977), 434 US 892, 98 S Ct 269, 54 L Ed 2d 178.
  9. United States v. Kerley, 784 F.3d 327, 341 (6th Cir. 2015) (“Secondary-evidence summaries are a hybrid of summaries admitted under Federal Rule of Evidence 1006 and pedagogical-device summaries. United States v Bray, 139 F.3d 1104, 1112 (6th Cir. 1998). They are not prepared entirely in accordance with Rule 1006 but are more than mere pedagogical devices. In other words, secondary-evidence summaries ‘are admitted in evidence not in lieu of the evidence they summarize but in addition thereto, because in the judgment of the trial court such summaries so accurately and reliably summarize complex or difficult evidence that is received in the case as to materially assist the jurors in better understanding the evidence.’ Id.”)

Wade Davies WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.