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Sunday, July 8, 2012

Can I Get A Summary?: ED Mich. Opinion Sets Out 5 Preconditions To Admission Of Summary Charts Under Rule 1006

Federal Rule of Evidence 1006 provides that

The proponent may use a summary, chart, or calculation 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.

The recent opinion of the United States District Court for the Eastern District of Michigan in United States v. Rogers, 2012 WL 2339343 (E.D.Mich. 2012), does a nice job of laying out five preconditions that a party must satisfy to admit summary charts under Rule 1006.

Unfortunately, the opinion in Rogers doesn't give us the facts of the case, but it does set forth the summary chart that the government sought to admit against the defendant:
National City Bank–Account Number ending X0256
Account Summary
For the period February 21, 2007 through February 22, 2008

 

Period
Date Range
Beginning Balance
Deposits/Credits
Checks/Debits
Ending Balance
1
02/21/2007–03/22/2007
$1,487.78
$4,093.52
$5,354.23
$227.0 7
2
03/23/2007–04/23/2007
227.07
3,055.52
2,947.53
335.06
3
04/24/2007–05/23/2007
335.06
65,926.95
65,571.72
690.29
4
05/24/2007–06/22/2007
690.29
3,096.38
3,171.13
615.54
5
06/23/2007–07/25/2007
615.54
3,106.52
3,333.72
388.34
6
07/26/2007–08/24/2007
388.34
2,956.57
2,512.57
832.34
7
08/25/2007–09/24/2007
832.34
3,256.52
3,755.82
333.04
8
09/25/2007–10/24/2007
333.04
3,006.52
3,054.39
285.17
9
10/25/2007–11/26/2007
285.17
2,995.58
2,700.46
580.29
10
11/27/2007–12/21/2007
580.29
3,095.58
3,020.47
655.40
11
12/22/2007–01/24/2008
655.40
2,954.64
3,479.64
130.40
12
01/25/2008–02/22/2008
130.40
6,657.66
5,242.15
1,545.91
     
$104,201.96
$104,143.83

From this, I think it is safe to assume that there were questions about the origin of the $65,926.95 in deposits/credits from the date range of 04/24/2007-05/23/2007. The question, though was whether this summary chart could be admitted under Rule 1006, and the Eastern District of Michigan noted that, in the Sixth Circuit, five preconditions to the admission of summary charts under the Rule:

[1] The documents...must be so voluminous that they cannot conveniently be examined in court by the trier of fact, That is, the documents must be sufficiently numerous as to make comprehension difficult and inconvenient[;]
[2] [T]he proponent of the summary must also have made the documents available for examination or copying, or both, by other parties at [a] reasonable time and place[;]
[3] [T]he proponent of the summary [must] establish that the underlying documents are admissible in evidence, Thus, if the underlying documents are hearsay and not admissible under any exception, a chart or other summary based on those documents is likewise inadmissible[;]
[4] [A] summary document must be accurate and nonprejudicial. This means first that the information on the document summarizes the information contained in the underlying documents accurately, correctly, and in a nonmisleading manner, Nothing should be lost in the translation [; and]
[5] [A] summary document must be properly introduced before it may be admitted into evidence.

The court then found that each of the government satisfied each of these preconditions:

First

First, the underlying documents—exhibit 15—are sufficiently voluminous to make review inconvenient. According to the Government, the purpose of the summary exhibits is to provide a snapshot of the Account records. Using only exhibit 15 could prove inconvenient for the jury, given that exhibit 15 is 175 pages of bank records—statements, canceled checks, deposit slips and the like—and uses formatting, terminology and abbreviations that may be unfamiliar or difficult to comprehend. By contrast, the Exhibits consist of two one-page documents: (1) a table showing the total credits, total debits and beginning and ending account balances for each month for a period of 12 months; and (2) a line chart showing the same debit and credit information as the table. Moreover, Defendant does not dispute the accuracy of the information in the Exhibits, and the underlying documents (exhibit 15) are stipulated to and have already been received into evidence.

Second

Second, the government has “made the documents available for examination or copying...at [a] reasonable tune and place,” since Defendant's counsel has stipulated to exhibit 15 and does not dispute the accuracy of the summary information found in the Exhibits.

Third

Third, the underlying documents are themselves admissible, since the bank records forming the basis for exhibits 15a and 15b have already been stipulated to and entered into evidence as exhibit 15.

Fourth

Fourth, with respect to the summary having to be fair and accurate, the Government declares that it has made every effort to be scrupulously careful in preparing the Exhibits, and Defendant has thus far not raised any objections in that regard.

Fifth

Fifth, with respect to a proper introduction, the Government states the Exhibits will be introduced by the FBI agent who obtained the underlying bank records, supervised the preparation of the Exhibits, and verified their accuracy as compared to exhibit 15. The agent will be subject to cross-examination....

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/07/1006-us-v-rogersslip-copy-2012-wl-2339343edmich2012.html

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Comments

Meh.

I agree with court on 2-4. But #1 bothers me because it falls for the either/or fallacy. Sure, I'd agree that 175 pages of checks meet the rule for exclusion. But is 12 months of bank statements that I get in the mail every year and so do most jurors too much. I don't think so. And maybe my opinion about the case changes if the 60K was done in one lump sum or rather in 2K installments every day something the statements would show and the summary does not.

I bring this up because it called to my mind the issue in the Confrontation Clauses cases about where do you draw the line on which experts are allowed to testify for DNA purposes. The guy at the machine. The FBI agent. etc.

It's not so much that I have an issue with the summary as I do which summary is presented. I think this summary is too superficial. It would have been possible to give the jury more information with the 12 bank statements and yet not overburden them. A possibility that it doesn't appear the court even considered.

Posted by: Daniel | Jul 8, 2012 10:28:24 AM

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