Illustrative Summary Chart

The headline for the May 10, 2024 newspaper article about Trump’s “hush money” trial read “Prosecutors introduce key text and call records into evidence” Then, the article went on to state:

After Westerhout (a prosecution witness) left the stand, prosecutors spent the rest of the day calling a series of custodial witnesses to introduce cell phone records into evidence.

It made for a dry day of testimony, but it also provided key evidence that prosecutors plan to use to try to convince the jury that Trump is guilty of falsifying business records.

Those records included a summary of the 34 charges against Trump – 11 invoices, 12 vouchers, and 11 checks. Through a Manhattan district attorney’s office paralegal, prosecutors introduced a summary explaining how the charges correlated with the documents in evidence.”

The applicable New York evidence rule that supports the admissibility of a summary chart is  10.11. Exception for Summary of Voluminous Material, and it provides for the admissibility of a summary chart as follows:

The content of voluminous writings, recordings, or photographs may be proved by the use of a summary, chart, or calculation of the contents, provided the writings, recordings, or photographs are accurate, otherwise admissible, and cannot be conveniently examined in court. The party offering such evidence must make the originals available for examination, copying, or both, by other parties at a reasonable time and place. The party against whom the item is being offered must be given an opportunity to challenge its admission. And, the court may order the offering party to produce the underlying originals in court. 

In my book Visual Litigation: Visual Communication Strategies and Today’s Technology my co-authors and I discuss Federal Rule of Evidence 1006, which is similar to New York’s rule, as follows:

“Fed. R. Evid. 1006 provides: 

The proponent may use a . . .chart. . . to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.’ 

“Rule 1006 makes common sense. If there are too many writings, recordings or photos for the jury to conveniently examine, they can be summarized on a chart. To lay an evidentiary foundation for a summary chart, the proponent must establish that the original writings, recordings or photographs would be admissible, that they cannot be conveniently examined in court, and that the chart accurately summarizes the originals.

U.S. v. Milkiewicz , is an example of how to lay a foundation for a Rule 1006 chart and its benefits. In Milkiewicz, the defendant appealed a conviction of defrauding a federal court when he collaborated with a court administrator, sold office supplies to the court at inflated prices and billed it for more products than he delivered. At trial two summary charts were admitted into evidence, one showing the allegedly fraudulent sales transactions and the other showing discrepancies in defendant’s income tax reporting. U.S. Court of Appeals, First Circuit, discussed what must be established as an evidentiary predicate for a summary chart to be admissible: 

Rule 1006 allows ‘‘[t]he contents of voluminous writings which cannot conveniently be examined in court [to] be presented in the form of a chart, summary, or calculation.’’ Fed. R. Evid. 1006. It creates an exception to Rule 1002, which requires that originals be used to prove the content of writings, recordings and photographs. Evidence admitted under Rule 1006 must be otherwise admissible and remains subject to the usual objections under the rules of evidence and the Constitution. ‘Most notably, Rule 1006 evidence normally is objectionable if the voluminous source material on which it is based is inadmissible.’ . . . The proponent must show that the voluminous source materials are what the proponent claims them to be and that the summary accurately summarizes the source materials. . . 

Under Rule 1006, the underlying documents must be made available to the other parties, and ‘‘[t]he court may order that they be produced in court.’’ The discretion accorded the trial court to order production of the documents means that the evidence underlying Rule 1006 summaries need not be introduced into evidence . . ., but nothing in the rule forecloses a party from doing so. For example, we can imagine instances in which an attorney does not realize until well into a trial that a summary chart would be beneficial, and admissible as evidence under Rule 1006, because the documents already admitted were too voluminous to be conveniently examined by the jury. 

Most often, however, we think it likely that an attorney would anticipate the benefits of summarizing voluminous writings and would take advantage of the opportunity offered by Rule 1006 to present only the summary at trial. Consequently, while in most cases a Rule 1006 chart will be the only evidence the fact finder will examine concerning a voluminous set of documents, . . ., in other instances the summary may be admitted in addition to the underlying documents to provide the jury with easier access to the relevant information. . . 

This latter practice has drawn criticism as inconsistent with the purpose of Rule 1006 to provide an exception to the ‘‘best evidence rule’’ because, ‘‘[i]f the underlying evidence is already admitted, there is no concern that a summary is used in lieu of the ‘best evidence.’ ’’ . . . We agree with the Fifth Circuit, however, that ‘‘[t]he fact that the underlying documents are already in evidence does not mean that they can be ‘conveniently examined in court.’ ’’. . Thus, in such instances, Rule 1006 still serves its purpose of allowing the jury to consider secondary evidence as a substitute for the originals.   (citations omitted)

The summary chart in the Trump trial (which has not yet been published on line) will be not only a valuable piece of evidence that the prosecution can rely upon in closing argument to tell the story in a way jurors can easily understand but also an exhibit the jurors will turn to rather than the original documents.