CRIMINAL JUSTICE | SUMMER 2024
trial tactics
Published in Criminal Justice, Volume 39, Number 2, 2024. © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of
the American Bar Association.
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(b) Procedures. The proponent must make the
underlying 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.
(c) Illustrative Aids Not Covered. A summary,
chart, or calculation that functions only as an
illustrative aid is governed by Rule 107.
The Purpose of the Addition and the
Amendment
Rule 107 and amended Rule 1006 were
drafted by the Advisory Committee on the
Federal Rules of Evidence to eliminate some
of the confusion that existed in federal cases
concerning the admissibility and proper use of
exhibits admitted as (a) substantive evidence
or (b) exhibits used for illustrative, demon-
strative, or pedagogical purposes. Exhibits
admitted as substantive evidence must meet
the standards for admissible evidence, includ-
ing relevance, and might be excluded under
Rule 403 as unfairly prejudicial. Exhibits used
for illustrative, demonstrative, or pedagogical
purposes are not “evidence” and need not
comply with ordinary evidence rules, but they
may not be used at all if a trial judge decides
not to permit them. Federal decisions tended
to treat exhibits admitted as substantive evi-
dence as being admitted under Rule 1006, and
exhibits used for illustrative, demonstrative,
or pedagogical purposes as being permitted
pursuant to Rule 611(a). But the decisions were
not always clear as to the proper use of the
two kinds of exhibits.
A New Rule and an Amendment
Barring a surprise, effective December 1, 2024 ,
new Rule 107 becomes part of the Federal
Rules of Evidence. It’s text is:
Rule 107. Illustrative Aids
(a) Permitted Uses. The court may allow a party
to present an illustrative aid to help the trier of fact
understand the evidence or argument if the aid’s
utility in assisting comprehension is not substantially
outweighed by the danger of unfair prejudice,
confusing the issues, misleading the jury, undue
delay, or wasting time.
(b) Use in Jury Deliberations. An illustrative aid
is not evidence and must not be provided to the
jury during deliberations unless:
(1) all parties consent; or
(2) the court, for good cause, orders otherwise.
(c) Record. When practicable, an illustrative aid
used at trial must be entered into the record.
(d) Summaries of Voluminous Materials
Admitted as Evidence. A summary, chart, or
calculation admitted as evidence to prove the
content of voluminous admissible evidence is
governed by Rule 1006.
On December 1, 2024, Rule 1006 will be amend-
ed to make the following changes (with deletions
struck through and new material italicized):
Rule 1006. Summaries to Prove Content
(a) Summaries of Voluminous Materials
Admissible as Evidence. The proponent court
may admit as evidence use a summary, chart,
or calculation offered to prove the content of
voluminous admissible writings, recordings,
or photographs that cannot be conveniently
examined in court, whether or not they have
been introduced into evidence.
BY STEPHEN A. SALTZBURG
Pending Amendments to the
Federal Rules of Evidence
STEPHEN A. SALTZBURG is the Wallace and
Beverley Woodbury University Professor at e
George Washington University Law School and is
a former chair of the Criminal Justice Section.
