Summaries as Evidence

JurisdictionColorado,United States
CitationVol. 16 No. 10 Pg. 1836
Publication year1987
16 Colo.Law. 1836
Colorado Lawyer

1987, October, Pg. 1836. Summaries as Evidence


Vol. 16, No. 10, Pg. 1836

Summaries as Evidence

by Todd L. Vriesman

Civil trial lawyers are painfully aware that courts are using their discretion to place stricter time limits on the length of trial or even on the presentation of particular evidence.(fn1) From a different but perhaps complementary perspective, there is also increased concern among lawyers about communicating with and teaching juries.(fn2)

One hundred years ago, the Colorado Code of Civil Procedure was amended to allow in evidence the summary of documents. The purpose of the amendment was to solve a persistent problem caused by the best evidence rule when a court or jury was facing the inefficient task of reviewing numerous documents. The problem became especially onerous when the particular documents were of lesser importance than the conclusions or understanding reached from review of the documents as a whole.

Thus, a cost-effective exception was created to the best evidence rule to allow summary of numerous documents. This exception is also an important device for trial lawyers to meet court-imposed time limits or to enhance presentations to a court or jury.(fn3) This device is codified today as Rule 1006 of the Colorado Rules of Evidence ("C.R.E.").(fn4)

Unfortunately, Rule 1006 is often overlooked by practitioners who are not aware of its formidable powers. Moreover, some courts and commentators disagree as to the use of summaries under Rule 1006. This article discusses the parameters and powers of Rule 1006, and reflects on the confusion developing as to its use.

History of Summary Evidence in Colorado

In 1887, the former Colorado Code of Civil Procedure was amended to allow "secondary evidence" of "numerous accounts or other documents which cannot be examined in court without great loss of time and the evidence sought is only the general result of the whole."(fn5) When the Colorado Rules of Civil Procedure ("C.R.C.P.") were adopted in 1941, this provision was incorporated without change in Rule 43, and is now designated as Rule 43(g)(5).(fn6)

The Colorado Rules of Evidence became effective on January 1, 1980. Rule 1006 states the criteria for summary evidence as follows:

The contents of voluminous writings, recordings, or photographs which cannot be examined conveniently in court may be present in the form of a chart, summary, or calculation. The originals or duplicates shall be made available for examination or copying, or both, by other parties at [a] reasonable time and place. The court may order that they be produced in court.

The official comment of the Colorado Supreme Court drafting committee indicates that Rule 1006 "will replace" C.R.C.P. Rule 43(g)(5). Curiously, however, Rule 43(g)(5) has not been repealed during the years since the Colorado Rules of Evidence were adopted. Perhaps this failure is simply an administrative oversight and, in fact, it is the intent of the Colorado Supreme Court to have the trial courts follow only the provisions of Rule 1006.

Analysis of Rule 1006

The provisions of Rule 1006 present five primary criteria for the admission of a summary. First, the summary must be of "voluminous writings, recordings or photographs which cannot conveniently be examined in court." Of course, the volume of the underlying materials is the factor central to the rule's necessity. The required volume can be interpreted as either one lengthy document or a large number of simple documents, such as checks or receipts. Court decisions differ on the amount necessary to be considered voluminous and inconvenient for examination in court.(fn7)

Second, Rule 1006 states that only "writings, recordings or photographs" may be the subject of a Rule 1006 summary.(fn8) Thus, a Rule 1006 summary cannot include testimonial evidence.(fn9) Similarly, a summary offered under Rule 1006 cannot properly incorporate a witness' personal knowledge as the basis for any of the matters summarized.(fn10)

Third, the underlying materials must be made available to opposing parties for examination or copying at a "reasonable time and place."(fn11) This absolute right to examine the underlying documentation is not limited by the failure to request such documents during discovery.(fn12) Although this examination requirement is clear, the statement that disclosure occur at a "reasonable time and place" is...

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