§ 30.11 Exception—Summaries: FRE 1006

• Jurisdiction: North Carolina

§ 30.11 Exception—Summaries: FRE 1006

In some cases, there are simply too many records. Rule 1006 permits them to be presented in the form of a "chart, summary, or calculation."⁷¹ The summary itself may be presented as a tangible exhibit or through the testimony of a witness. The underlying materials that are summarized, however, must be a writing, recording, or photograph. The rule does not encompass a summary of verbal statements.⁷² The summary must also be distinguished from the originals. For example, printouts of a business ledger kept on computer are the actual records, not summaries; Rule 803(6), the hearsay exception for business records, controls, not Rule 1006.⁷³

"Voluminous" requirement. While the writings that are summarized must be voluminous, convenience (not necessity) is the standard in this context.⁷⁴

Right of inspection. Rule 1006 explicitly provides that the underlying materials must be made available for inspection and copying by the other parties.⁷⁵ Inspection is only possible with advance notice.⁷⁶ Consequently, discovery procedures and pretrial hearings are important.

Production of originals. Rule 1006 explicitly authorizes the trial judge to order in-court production of the originals or duplicates, a decision left to the judge's discretion.⁷⁷

Admissibility of underlying documents. Although not explicitly stated in the rule, a summary is not admissible if the originals upon which it is based are inadmissible.⁷⁸ In other words, Rule 1006 is not an exception to the hearsay rule.

Accuracy requirement. Although not explicitly required by the rule, a summary must "fairly represent and be taken from" the originals.⁷⁹ In one case, a summary of medical articles was ruled inadmissible because the expert who prepared the summary had not read all the articles.⁸⁰ In another case, summaries of figures were excluded because "there was virtually no documentation."⁸¹

Experts. The use of summaries often requires expert testimony (e.g., an accountant), in which case the expert must be qualified.⁸² Expert testimony, however, is not always required.⁸³

Summaries as pedagogic devices. The use of summaries as evidence must be distinguished from the use of summaries and charts as pedagogical devices. A summary admitted under Rule 1006 is itself evidence and should go to the jury room along with other exhibits.⁸⁴ Charts and other visual aids that merely summarize or organize testimony are not themselves evidence and should not be sent to the jury room.⁸⁵

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Notes:

^[71] Fed. R. Evid. 1006 advisory committee's note (The "admission of summaries of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and jury. The rule recognizes...